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Sheriff not obliged to sue unless indemnified
Parties indebted to any person against whom writ of execution has issued, not to pay such debt to any other person than the Sheriff
Shares in public companies may be charged and sold
Attachment and Recovery of Debts
of any debt due to the party against whom such writ shall have issued as may in the reasonable discretion of such Sheriff be requisite (over and above the value or estimated value of any other property seized under such writ) to satisfy the amount by such writ directed to be levied if and when the time of payment of the sums secured by such securities and of such debts respectively shall have arrived, and that the payment to such Sheriff or other officer by the party liable on any such cheque, bill of exchange, promissory note, bond, speciality or other security, with or without suit, or the recovering and levying execution against the party so liable, shall discharge him or her to the extent of such payment or of such recovery and levy in execution, as the case may be, from his or her liability on any such cheque, bill of exchange, promissory note, bond, speciality or other security, and such Sheriff or other officer shall pay over to the party suing out such writ the money so to be recovered or such part thereof as shall be sufficient to discharge the amount by such writ directed to be levied, and if after satisfaction of the amount so to be levied, together with Sheriff's poundage and expenses, any surplus shall remain in the hands of such Sheriff or other officer, the same shall be paid to the party against whom such writ shall have been issued : Provided always that no such Sheriff or other officer shall be bound to sue any party so liable as aforesaid, unless the party suing out execution shall enter into a bond, with two sufficient sureties, for indemnifying him from all costs and expenses to be incurred in the prosecution of such action or to which he may become liable in consequence thereof, and the Sheriff shall be entitled to a fee upon such of twenty shillings, to be deducted out of any money to be recovered in such action.
2. And be it enacted that a written notice signed by the said Sheriff, addressed to any person who shall appear by any such books of account as aforesaid to be indebted to any person against whom any such writ of execution shall have issued and warming the person to be served with such notice not to pay such debt to any other person than the said Sheriff, shall, after service thereof, have the effect of restraining the party served therewith from paying such debt otherwise than to the said Sheriff until a written countermand of such notice be signed and served by such Sheriff; and if any person served with such notice shall, after service thereof, and before service of such countermand, pay such debt otherwise than to the said Sheriff, such person shall be liable to the execution creditor for the amount so paid.
3. And be it enacted that if any person against whom any judgment shall have been entered up in the said Civil Court shall have any stock or share or shares of or in any public company in this Colony (whether incorporated or not) standing in his name in his own right or in the name of any person in trust for him, it shall be lawful for the Commissioner of the said Court, on the application of any judgment creditor, to order that such stock or shares or such of them or such part thereof respectively as he shall think fit shall stand charged with the payment of the amount for which judgment shall have been so recovered and interest thereon; and if such judgment and interest be not paid or satisfied within the period of six calendar months from the date of such order, it shall be further lawful for the said Commissioner on the application of such judgment creditor or his or her lawful representative,
Attachment and Recovery of Debts
supported by affidavit, that such judgment and interest or some portion thereof respectively are or is still unsatisfied, to order and direct that the stock or shares so charged as aforesaid shall be sold by the Sheriff in like manner as any personal property of a defendant may be sold under the process of execution of the said Court, but subject nevertheless to any right of pre-emption and to the rules, regulations and agreements, if any, which in and by the deed of settlement or partnership or other instrument of association of such company may be contained or provided for or concerning the sale of such stock or shares. 4. And be it further enacted that every order of the said Com- order of Court missioner charging any stock or share in any public company under to: this Act shall be made in the first instance ea parte and without any shares, &e notice to the judgment debtor, and shall be an order to show cause only, and such order shall restrain such company from permitting a transfer of such stock or shares, and if after notice of such order to the person or persons to be restrained thereby or in case of corporation to any authorised agent thereof, and before the same order shall be discharged, such corporation or other company shall permit any such transfer to be made, then and in such case such corporation or other company shall be liable to the judgment creditor for the value or amount of the property so charged and so transferred or such part thereof as may be sufficient to satisfy his judgment, and that no disposition of the judgment debtor in the meantime shall be valid or effectual as against the judgment creditor; and unless the judgment debtor shall, within a time to be mentioned in such order, show to the said Commissioner cause to the contrary, the said order shall, after proof of notice thereof to the judgment debtor or his attorney, be made absolute : Provided that the said Commissioner shall, upon the application of the judgment debtor or any other person interested, have full power to discharge or vary such order and to award such costs upon such application as he may think fit.
5. And be it enacted that every judgment debt shall carry interest Judgment to at the rate of ten pounds for every hundred pounds by the year from ** the time of entering up the judgment until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment.
6. And be it enacted that all decrees and orders of the said Civil Decrees and Court, on the Equity side thereof, and all rules and orders of the said o.o. Court, interlocutory or other, whereby any sum of money or any costs, toyo charges or expenses, shall be payable to any person, shall have the “” effect of judgments on the Common Law side of the said Court; and the persons to whom any such moneys, costs, charges or expenses shall be payable shall be deemed judgment creditors within the meaning of this Act, and all remedies hereby given to judgment creditors are in like manner given to persons to whom any moneys, costs, charges or expenses are by such orders or rules respectively directed to be paid ; and all such decrees and orders of the said Court on the Equity side thereof, and all such rules and other orders of the said Court as aforesaid, shall or may be enforced in like manner and by the like process of execution (or as near thereto as the circumstances of the case will admit) as the judgments of the said Court, on the Common Law side thereof, may be enforced.
Sheriff may sell by private contract
Act may be amended
A release to be effectual although no lease for a year shall be executed
The recital or mention of a lease for a year in a release executed before the passing of this Act, to be evidence of the execution of such lease for a year
Attachment and Recovery of Debts
7. And be it enacted that it shall be lawful for the Sheriff of the said Colony to sell by private contract any goods and chattels by him seized under process of execution as soon after the seizure thereof as he may think fit, if it shall appear to him that such a course of sale is likely to realise the fair market value of the said goods and chattels, and to procure, if he shall deem the same expedient, two competent persons to make an appraisement in writing, under their hands, of such goods and chattels, and to pay a fee of two shillings and sixpence to each of such appraisers, and to charge and include such fees in the expenses of the execution.
HEREAS it is expedient to lessen the expenses of conveying freehold estates: Be it therefore enacted by His Excellency the Governor of Western Australia, by and with the advice and consent of the Legislative Council thereof, that every deed or instrument of release of a freehold estate or deed or instrument purporting or intended to be a deed or instrument of release of a freehold estate which shall be executed after the passing of this Act, and shall be expressed to be made in pursuance of this Act, shall be as effectual for the purposes therein expressed, and shall take effect as a conveyance to uses or otherwise, and shall operate in all respects both at law and equity as if the releasing party or parties who shall have executed the same had also executed in due form a deed or instrument of bargain and sale or lease for a year for giving effect to such release, although no such deed or instrument of bargain and sale or lease for a year shall be executed.
2. And whereas deeds or instruments of bargain and sale or leases for a year, to give effect to deeds or instruments of release of freehold estates heretofore executed, may have been lost or mislaid: Be it enacted that where in or by any deed or instrument of release of freehold estates executed before the passing of this Act, any deed or instrument of bargain and sale or lease for a year giving effect to such deed or instrument of release shall be recited, or by any mention thereof in such deed or instrument of release appear to have been made or Transfer of Real Property
executed, such recital or mention thereof shall be deemed and taken to be conclusive evidence of the deed or instrument of bargain and sale or lease for year so recited or mentioned having been made and executed; and such deed or instrument of release shall also have the like effect as if the same had been executed after the passing of this Act, whether such deed or instrument of bargain and sale or lease for a year shall or shall not have been lost or mislaid or may or may not be produced :Provided always that this Act shall not prejudice or affect any proceedings at law or in equity pending at the time of the passing of this Act, in which the validity of any bargain and sale or lease for a year shall be in question between the party claiming under such bargain and sale or lease for a year and the party claiming adversely thereto ; and such bargain and sale or lease for a year, if the result of such proceedings shall invalidate the same, shall not be rendered valid by this Act.
3. And be it enacted that in the construction of this Act, the word “freehold' shall have not only its usual signification, but shall extend to all lands and hereditaments for the conveyance of which if this Act had not been passed, a bargain and sale or lease for a year, as well as a release might have been used.
4. And be it enacted that this Act may be amended or repealed by any Act to be passed during this present session.
HEREAS an Act was passed in the fourth and fifth years of the reign of Her present Majesty, intituled “An Act to allow the aboriginal natives of Western Australia and its Dependencies to give information and evidence without the sanction of an oath,’ which Act is shortly about to expire; and whereas it is expedient that the said Act should be continued for a limited period: Be it therefore enacted, by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, that the said Act shall be, and the same is hereby continued for the space of five years from the date of this Act. WOL. I. E
Construction of the word “Freehold'
Act may be amended
4th & 5th Wic., No. 22, continued for five years
Any instrument of mortgage executed on or before the 1st January next, although not accompanied by deposit of title deeds, to be valid
* See 24 Vic, No. 3, s. 2
HEREAS in the second year of the reign of His late Majesty King William the Fourth an Act was passed intituled “An Act to facilitate and simplify the Transfer of Real Property,’ in which Act certain simple and concise forms were given as guides to persons desirous of transferring by Way of sale or mortgaging any real property in this Colony; and whereas, either through ignorance or inadvertence in the absence of professional aid, many instruments intended to serve as instruments of sale and transfer, or to operate by way of mortgages, have been framed not in accordance with the wording of those forms, and in some instances those forms have been used in cases where they were not strictly applicable; and whereas doubts have been suggested as to the validity of such instruments; and whereas for the quieting of titles it is expedient to remove such doubts: Be it therefore enacted by His Excellency the Governor of Western Australia and its Dependencies, by and with the advice and consent of the Legislative Council thereof, that any instrument in writing which has been executed or which shall be executed on or before the first day of January next" by any party, for the purpose (clearly apparent on the face of such instru. of transferring by way of sale an estate of inheritance in fee simple of such party in any lands, tenements, or hereditaments, situated in this Colony, shall be deemed and taken to be valid and effectual to pass and transfer such estate both at law and in equity, although such instrument shall not be according to the form of transfer given in the aforesaid Act, nor according to any form of transfer recognised by the practice of conveyancing in England.
2. And be it enacted that any instrument in writing purporting to be a mortgage by deposit of title deeds with a power of sale of any lands, tenements, or hereditaments situate in this Colony which has been executed, or which shall be executed on or before the first day of January next," although the same shall not have been accompanied by a deposit of title deeds, shall be deemed and taken to be valid and effectual as a mortgage of such lands, tenements, or hereditaments, as