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RULES OF CIVIL PROCEDURE.
be ordered in certain cases.
Council. Expenses of imprisonment.
prisonment ordered as the Court in its discretion may think fit to appoint, and the Court may also make any order respecting the expenses of his imprisonment that may be necessary and just. Any person committed for misconduct in respect of refusal or neglect to comply with a decree other than for payment of money, may be detained in custody until he has obeyed the decree in all things that are to be immediately performed, and given such security as the Court thinks fit to obey the other parts of the decree (if any) at the future times thereby appointed, or in case of his no longer having the power to obey the decree, then until he has been imprisoned for such time or until he has paid such fine as the Court directs.
Labour to be
13. The labour shall be of such nature, and shall be performed appointed by under such regulations, as the Governor in Council may from time to time appoint.
prison for the province or district.
12. The Court may in its discretion direct that any judgment debtor ordered to be imprisoned on account of any misconduct as aforesaid shall be kept to labour within the prison during any period of such imprisonment.
14. In every case where a person is so committed to prison on account of misconduct as aforesaid, as well as in every case of a person committed for contempt of Court, the Court may direct that the expenses of the conveyance of such person to prison, and of his maintenance during his imprisonment, shall be defrayed in the first instance by the Colonial Treasurer, if the Court considers that it is expedient in the interests of justice that the expenses should be so defrayed, and shall so direct. The Colonial Treasurer shall in all such cases be entitled to recover the sums so disbursed by him by attachment and sale of the property of the person imprisoned, or he may, if the Court so directs, recover such sums from the execution creditor. In case the Court shall not direct the said expenses to be defrayed by the Colonial Treasurer, the same shall be defrayed by the execution creditor. The execution creditor shall have right in all cases to recover all sums disbursed by him for expenses as aforesaid from the judgment debtor in the manner prescribed by the fourth rule of this Order.
3. Place of Imprisonment.
15. Any person ordered to be imprisoned under a decree shall be confined in the prison which shall have been declared under any Ordinance regulating prisons for the time being in force to be a debtors' prison for the Province or District in which the Court making the decree has jurisdiction; and if and whilst such classification may not have been made as respects any Province or District, then such person may be confined in any building within the same Province declared a prison, which the Colonial Secretary shall certify to the Court under his hand possesses suitable accommodation for the confinement of debtor prisoners: provided that nothing herein contained shall be construed to hinder prisoners ordered to labour from being confined in any prison within the jurisdiction of the Supreme Court.
Order made April 29, 1878. See Appendix.
4. Consequences of Imprisonment.
Imprisonment not to
16. No imprisonment shall prevent a judgment debtor from being again imprisoned for any act of wilful disobedience, or other default rendering him liable to be imprisoned, occurring or continuing after be more than his imprisonment or release; but, except in such cases, a party who once on same has been once released from imprisonment shall not be imprisoned Exceptions. again upon the same decree.
tion of debt;
17. Imprisonment shall not in any case operate as satisfaction or Imprisonextinguishment of the debt or cause of action, or deprive the execution ment creditor of any right of execution against the moveable or immoveable not satisfacproperty of the judgment debtor: provided that, in cases where the how far it judgment debtor shall have been arrested and is detained in custody, affects no sale of any portion of his property taken in execution shall be execution. made except by the written consent of the judgment debtor, and, except in the case of perishable articles which may be sold forthwith, until one month shall have elapsed after his being so arrested, and at least fifteen days' notice shall have been given to the judgment debtor specifying the property so taken and intended to be sold.
18. In case the person against whom a warrant of arrest has been Where issued is not found, the execution creditor shall be entitled to proceed judgment by execution against his property as if no such warrant has been debtor not issued.
RULES OF CIVIL PROCEDURE.
ENFORCEMENT OF ORDERS.
1. Any order of the Court made in any cause or matter may be Orders in enforced by leave of the Court in the same manner as a decree to the general. same effect.
2. Any interlocutory order may be enforced by leave of the Court Interlocutory by any of the methods applicable thereto by which a final order is Orders. enforceable.
3. Interlocutory orders may also be enforced according to the Staying following provisions:
If a plaintiff in a suit makes default or fails in fulfilling any interlocutory order, the Court may, if it thinks fit, stay further proceedings in the suit until the order is fulfilled, or may give a judgment or nonsuit against such plaintiff, with or without liberty of bringing any other suit on the same grounds of action, or may make such other order on such terms as to the Court shall seem just.
If a defendant in any suit makes such default or failure, the Court may give judgment by default against such defendant, or make such other order as to the Court may seem just.
But any such judgment by default may be set aside by the Court upon such terms as to costs or otherwise as the Court may think fit.
and judgment by default.
RULES OF CIVIL PROCEDURE.
Obedience enforced in
as upon parties in a suit.
In what cases.
Before what tribunals.
Affidavit to be filed.
DECREES OR ORDERS UPON OR IN FAVOUR OF PERSONS NOT PARTIES.
1. Where a person not being a party in a suit obtains an order, or has an order made in his favour, he shall be entitled to enforce obedience to such order by the same process as if he were a party in the suit; and any person not being a party in a suit against whom obedience to any decree or order may be enforced, shall be liable to the same process for enforcing obedience to such decree or order as if he were a party to the suit.
SPECIAL PRACTICE IN CERTAIN CASES.
1. Foreign Attachment.
PROCEEDINGS BY FOREIGN ATTACHMENT.
1. Proceedings by foreign attachment may be taken in manner hereinafter prescribed in all suits founded on contract or for detenue or trover, provided that the cause of action arose within the juris
2. Such proceedings shall not be taken before a Commissioner, but may be taken before a Divisional Court of the Province where the cause of action arose or the property intended to be attached is situated.
3. Upon the filing in Court by the plaintiff in any such suit of an affidavit to the following effect, that is to say:—
(a) That the cause of action arose within the jurisdiction;
(d) That the defendant is beneficially entitled to lands or to any interest therein within the jurisdiction, or to any moneys, securities for money, goods, chattels, or other property whatsoever within the jurisdiction, in the custody or under the control of any other person within the jurisdiction, or that such other person (hereinafter called the garnishee) is indebted to the defendant;
the Court may issue a writ of general attachment against all property Issue of writ. moveable and immoveable, of the defendant within the jurisdiction, or
such part thereof or property specified as may be sufficient to answer
the amount of the plaintiff's claim, 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.
RULES OF CIVIL PROCEDURE
4. Absence from the jurisdiction shall, for the purpose of pro- Absence from ceedings by foreign attachment, be taken to be absence for the time the jurisdicbeing, whether the party shall ever have been within the jurisdiction or not.
before issue of writ.
5. Before any such writ shall issue, the plaintiff, or some one on Bond to be his behalf, shall enter into a bond with one or more sufficient sureties entered into to be approved by the Court, in a penal sum equal to twice the amount of the claim, or in any less sum by special leave of the Court, the condition of which said bond shall be that, in case the defendant shall at any time within the period limited by this Order 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 attachment.
6. The bond shall be in such form as the Court may from time to Form thereof. time, or in any particular case, approve and direct, and shall be entered into before the Registrar, and deposited in Court: 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 as it shall think fit, and by the same order shall limit the time, not exceeding seven days from the date of the issue of the writ, within which the bond must be entered into and deposited as aforesaid; and in the case of default of complying with the requirements of such order within the time thereby limited, the Court may dissolve the writ, and thereupon may award costs and damages to the defendant, in the manner herein before provided in the case of a writ being set aside or a judgment in the suit being reversed or varied.
7. Where two or more writs of foreign attachment shall issue at Priority of the suit of different plaintiffs, they shall take priority respectively writs. according to the date and time at which application for the writ may have been made to the Registrar.
8. Property in the custody, or under the control of any public Property in officer, in his official capacity, shall be liable to attachment with the custody of a consent of the Queen's Advocate; and property in custodia legis shall public officer be liable to attachment by leave of the Court. In such cases the writ legis. of foreign attachment must be served on such public offices, or on the Registrar, as the case may be.
or in custodia
9. From the time of the issuing of a writ of foreign attachment Effect as all lands within the jurisdiction, or any interest therein to which the respects defendant mentioned in such writ is then beneficially entitled, whether lands, solely or jointly with others, shall to the extent of his interest therein,
RULES OF CIVIL PROCEDURE.
10. From the time of the service upon the garnishee of a writ of foreign attachment, all property whatsoever within the jurisdiction ing moveable other than lands, or any interest therein, to which the defendant
mentioned in such writ is then beneficially entitled whether solely or jointly with others, and which is in the custody or under the control of the garnishee, 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 bonâ 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 under such writ, to be sold in such manner as it shall direct, and the net proceeds to be paid into Court.
Sale of moveable property by order of Court.
Punishment of garnishee disposing of attached
property without leave.
Custody by Sheriff.
Notice of foreign attachment.
and subject to Crown debts and to any bonâ fide prior title thereto, or lien or charge thereon, and to the rights and powers of prior incumbrancers, be attached and may be declared liable to satisfy the claim of the plaintiff.
Notice to absent defendant may be ordered.
12. Any 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 particular jurisdiction, or sell or dispose of the same, or pay over any debt due 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, and he shall be deemed guilty of contempt of Court 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 attach
13. In all cases where it shall be made to appear to the satisfaction of the Court, by affidavit or otherwise, that there is reasonable cause to believe that any property attached is in danger of being removed out of the jurisdiction, or of being sold, or otherwise disposed of, the Court may, by an order in writing, direct the Sheriff to seize such property and detain the same subject to the order of the Court; and the Sheriff shall thereupon seize and detain such property accordingly. 14. Notice of the issue of the writ of foreign attachment shall be inserted twice in the Gazette, and twice in some 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
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.