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JAMES SHAW SINCLAIR, Q.C., JUDGE OF THE COUNTY COURT AND LOCAL JUDGE OF THE HIGH COURT OF JUSTICE AT HAMILTON. TORONTO : CARSWELL & CO., PUBLISHERS, 26 AND 28 Adelaide Street East. 1883. l^t- 1 0^1 Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-three, by Jamgs Shaw Sinclair, Q.C, judge of the County Court and Local Judge of the High Court oi Justice at Hamihon. PRINTED BY MooRF. & Co., Law Printers 20 ADELAIDE 57. EAST, TORONTO. To The HONOURABLE T. B. PARDEE, Q.C., Commissioner of Crown Lands for the Province of Ontario, THIS WORK — IS- WITH HIS PERMISSION ^EcspcctfuUu ittscribcb — BV THE — AUTHOR. .IJ^WII PREFACE. THE nece88ity for some work on the Law of Absconding Debtors is my apology for publishing at the present time this small addition to the legal literature of our Pro- vince. The repeal of the Insolvent Acts in 1880 brought into active operation the Absconding Debtors' Act, which had for about sixteen yaars before that time become prac- tically obsolete. It is now the only statute we have, under which an equal distribution of a debtor's property may in certain cases be obtained, and the frequent resort to its provisions has induced me to point out in the following pages the law and practice under that statute. The writer has tried to make this work as useful as possible to all connected with the administration of justice under the Absconding Debtors' Act, and to produce a book of ready and easy reference in all questions arising under that statute. To the legal practitioner in whose practice a fre- quent reference to the law of Absconding Debtors is neces- sary, I have striven to make the work one of special interest and importance. To one in whose practice reference may seldom be made to such law, I have, as plainly as I possibly could, brought before him the practical operation of the Act. To the officers of the law in the execution of process against Absconding Debtors, (and so far as possible point out to them their duty,) this work will, I trust, be found specially useful and instructive. To all whose rights or duties are regulated by the provisions of the Absconding Debtors' Act, the present work, it is hoped, will be of ser- vice. The Appendix of Forms will be found specially useful to all in the practical application of the Act. Not only has it been the object of the writer to make this book service- able in all cases arising under the Absconding Debtors' Act, but special attention has also been paid to such ques- viii PREFACE. tions as that of Bail, so that in cases of arrest on civil process resort may he had to this work for assistance. I have endeavoured to collect and hring before the reader every reported case in our own Courts bearing on the sub- ject on which I have assumed to write. I have also advisedly sought for information and instruction, and not in vain, among the many decisions on this subject in the American Courts. With legislation in all or nearly all of the States of the American Union much akin to ours on the subject of Absconding Debtors, I do not consider it necessary to apologise for drawing largely from the decisions of their Courts. The eminence of the American Courts and Judges whose decisions have been cited is the best answer to any objection to the citation of such authority. When we con- sider the general disinclination, if not repugnance, of the majority of our legislators to re-enact another Insolvent Act, and the improbability of such being done for many years to come, it forms some excuse for the appearance at the present time of such a work as this. The writer has striven hard to fill a void which, he believed, did exist ; and if he has succeeded in a small measure in accomplishing that object, his best hopes will be realized. No one can write a work without falling into many inaccuracies ; for all such I crave the indulgent considera- tion of the reader. My desire has been accuracy in every respect, whether or not I have succeeded in reasonably accomplishing that in part must be left for the considerate reader to judge. I have to acknowledge the able assistance I have received from James Bicknell, Jr., .Law-Student, Hamilton, in making out the Index of Cases, and what, without which any book no matter how good is incomplete, will, I trust, be found — a full index oi' subjects. J. S. SINCLAIE. Hamilton, October, 1883. TABLE OF CASES. Abouloff V. Oppenheimer, loi Adams v. Lane, iig Adamson v. Adamson, 13 Ainslie v. Rapelje, 119 Albee v, Webster, 70 Allen V. Flicker, 87 Allison, re, 35 AUman v. Kensell, 19 Anderson v. McEwan, 39, 74 Anderton v. Johnston, 56 Anglehart v. Rathier, 36 Anonymous, 20, 27 Apothecaries Co., in re, v. Burt, 94 Armour v. Carruthcrs, loi Assam Tea Co., re, ex p. Univer- sal Life Assurance Co., 103 Atkinson v. Janueson, 45 Attack V. Bramwell, 36 Atwood V. Chichester, 56 Augusta, Municipality of, v. Mu- nicipal Council of Leeds and Grenville, ig Auster v. Holland, 113 Austin V. Burgett, 9, 28 V. Davis, 94 B Babson v. Thomaston Insurance Co., 73 Baker v. Oakes, 99 Balfour v. Ellison, 43 Balkwell v. Beddome, 28 Banagan v. Sherwood, 36 Bank of British North America v. Jarvis, 100 Bank of Montreal v. Baker, loi " V. Bunham, 43 " " V. Harrison, 8 " " V. Taylor, 14 Toronto, re, 76 " V. McDougall, 28 " Upper Canada v. Glass, 100 " " V. Spafford,20, 42 " V. Vidal. 56 . Barclay v. Smith, 81 Barker v. Palmer, 38, 91 Barnupi v. Turnbull, 53 Barrett v. White, 69 Barry v. Eccles, 23 Baseb^ v. Mathews, 43 Batter bury v. Vyse, 91 Beach v. Schmulfz, 70 Beaty v. Bryce, 106, 112 Beckwith v. Sibley, 9 Bennett v. Bayes, 55 Bergh v. Jayne, 30 Bergin v. Pindar, loi Berry v. Zeiss, 4, 80 Bettes V. Farewell, 53 Bevan v. Wheat, loi Billings V. NichoUs, 34 Birch, ex p., 12 Bird V. Folger, 100 Bishop V. Martin, 43 Black V. Drouillard, 106 Bland v. Andrews, 81 Blair's vote, 13 Blyth & Fanshaw, re, 76 Bond v. Ward, 80 Booth V. Rees, 35 Boswell V. Pettigrew, 106 Bouchier v. Patton, 56 Bourne, ex p., 12 Braley v. French, 73 Brash, q. t., v. Taggart, 94 Breei -'. Midland Ry. Co., no Brett v. Smith, 6, 23 TABLE OF OASES. Breull, ex p., in re Bowie, 6 Briggs V. Lee, no Brighton Arcade Co. v. Dowling, 103 Brock V. Ruttan, 76 Broughton v. Smalipiece, no Brown v. Ahrenfeldt, 61 " V. North, 4 " V. Palmer, 23 " V. Richmond, 75 V. Riddell, 12 Brownell v. Manchester, 74 Buchanan v. Ferns, 48 Buckmaster v. Smith, 79 Buell V. Whitney, 8 Buffalo & Lake Huron Ry. Co. v. Hemmingway, 18 Burnham v. Waddell, 119 Burrittv. Renihan, no Burrowes, re, 19 Burrows v. Lee, 99 Burton v. Wilkinson, 36, 68 Butler V. Rosenfeldt, 6, 12 V. Standard Fire Insurance Co.. 74 Caird v. Fitzell, 100, loi Cammell v. Sewell, loi Campan v. Lucas, 112 Campbell v. Barrie, 16 V. Coulthard, 87 Canadian Bank of Commerce v. Crouch, 9 Canadian Bank of Commerce, v. Tasker, 106 Cann v, Thomas, 109 Cardwell v. Colgate, 30 Carroll v. Fitzgerald, 4 " V, Potter, 78, 100 Carson v. Carson, 80 Carter v. Stewart, 106 Castrique v. Behrens, 43 Cathrow v. Haggcr, 20 Chapman v. De Lome, 51 Chatterton v. Watney, 8, 9 Childers v. Wooler, 77 Chisholm v. Provincial Insurance Co., 103 Chittenden v. Hobbs, 9, 28 Churchill v. Siggers, 54 Clark V. Ashfield. 8 Clarke v. Farrell, 106 V. Garrett, 37 " V. Mcintosh, 47 V. Proudfoot, 103, no Cleaver v. Fraser, 108 Clements v. Kirby, 6 Clock V. Alfred, 8, 28 Cobb V. Force, 30 Colin, ex p. n Cole V. Parker, 68 Collins V. Smith, 74 Consolidated Bank v. Bickford, 16, 82 Cook V. Palmer, 77 Cooper V. Newman, 69 Cornwall v. Gould, 9 Coulson V, Spiers, 106 Courtney v. Carr, 14, 68 Cowan's Estate, in re, Rapier v. Wright, 9, 56, no Cox V. Milner, 14 Craig V. Craig, i6, 82, 106 Cramer v. Mathews, 106 Crawford v. McLean, 43 Crawley v. Isaacs, loi Crew V. Clarke, 16, 66 Crocker v. Pierce, 14 Cro.ishaw v. Chapman, 77 Crouch V. Crouch, 27 Culverhouse v. Wickens, no Cumberland Bone Co. v. Andes Insurance Co., 73 Cumming v. Bailey, 11 Curiae v. Packard, 88. D Dame v. Falls, 14, 68 Damer v. Busby, 19, 23, 41 Damon v. Bryant, 36 Daniel v. Fitzell, 100 Daniell v. James, 60 Daniels v. Charsley, 88 Deere v. Kirkhouse, 99 Delisle v. Grand, 12 Dennis v. Whetham, 36 Dennison v. Knox, 103 Denson v. Sledge, 68 Denton v. Livingstone, 87 De Pothonier v. De Mattos, 103 De Wolf V. Dearborn, 79 Diamond v. Cartwright, 20, 28 Dickenson v. Harvey, in, 114 TABLE OF CASES. xl Dickson v. McMahon, loi V. Swansea Vale Ry. Co., 103 Dixon V. Smart, 34 Doe d. Crew v. Clarke, 16, 66 " Thompson v. McKenzie, 119 Dorman v. Kane, 75 Dougall V. Lewis, 42 Douglas V. Chamberlain, no Doyle V Lasher, 72, 106 1 Eakins v. Christopher, 43 Eaton V. Gore Bank, 43 Edgar v. Magee, 9 V. Watt, 22 Edwards v. Dick, 21 Edwards v. L. and N. W. Railway Co., 76. Egginton's case. 46 Ellerby v. Walton, 19, 23 Fahey v. Kennedy, 43 Fair & Bell, re, no Ferrie, re, 37 Field V. Smith, 71 Finnigan v, Jarvis, 76 Fisher v. Beach, 42 V. Grace, 37 " V. Holden, 43 " V. Sulley, 116 Fitzgerald v. Blake, 69 Fleming v. Livingatone, 34 Flower v. Lloyd, loi Ford V. Drew, 6 " V. Lusher, 5 Francis v. Brown, 116 Eraser v. Anderson, 14 V. Page, 16 Frear v. Ferguson, 6 French v. Stanley, 71 Fricke v. Poole, 21 Fuller V. Bryan, 11 Fullerton v. Mack, 71 Fulton V. Heaton, 35, 68 Furnivall v. Saunders, 34 Galloway, re, 4 Gardner v. Juson, 38 Gardner v. Hust, 69 Gearing, in re, 4 Gilding v. Eyre, 43 Girdlestone v. Brighton Aquarium Co., loi Gladstone v. Padwick, 82, 96 Goodchap v. Roberts, 53 Goodwin v. Ottawa and Pres::ott Ry. Co., 76 Gordon v. Jennings, 9 Goulstone v. Royal Ins. Co., 73 Griffith V. Ward, 43 Grignon v. Astor, 18 Gunn V. Cox, 43 Gutierrez, ex p., in re Gutierrez, 6 H Hale V. Huntly, 8r Hall V. Brown, 18 " V. Brush, 23 " ex p., in re Townsend, 16, 89 " V. Larwin, 9 Hamilton v. Knight, 27 Handley v. Franchi, 20, 28 Handy v. Dobbin, 79 Hargreaves v. Hayes, 19 Harris v. Hanson, 70 Hart V. Myarris, 22 " V. Ruttan, 12, 19, 21, 28 Hartmont v. Foster, 106 Harvey v. Cherry, 74 Hatch V. Bayley, 79 Haynes, ex p. 30 Haynes v. Small, 71 Hemmenway v. Wheeler, 82 Heward v. Mitchell, 28 Hicks V, Faulkner, 43 Higgins V. Brady, 5, 6, 20, 24 Higgs V Assam Tea Co., 103 "■.gson V. Phelan, 99 Hill V. South Staffordshire Ry. Co,, 53 Hills V. Renny, 106 Hincks v. Sowerby, 16, 82 Hobson V. Campbell, 22 Holbrook v. Hyde, 70 Holland v. Wallace, in re, 9 xu TABLE OF CASES. Holly V. HuggefOid, 80 Holmes v. Tutton, no Hood V. Cronkite, 29, 43 Hooper v. Maitland, 4 Hope V. Fenner, 99 " V. Ferris, 8, 9 Hopkinson v. Talembier, 23 Howe V. Stewart, 77 Howell V. Metropolitan District Ry. Co., 8 " V. McFarlane, 72 Howland v. Rowe, 28, 41 Hubbard v. Milne, 62 Huffer V. Allen, 43, 54 Hughes V. Field, 100 V. Griffiths, 37 " V. Stirling, 60 Hunter v. Vanstone, 106 Ilsley V. Nicholls, 71 Imperial Land Co. of Marseilles, re ex p. Colborne & Strawbridge, 103 Imray v. Magnay, 36 Inglis V. Wellington Tlotel Co. 53 Ingram v. Taylor, 4 Irving V. Heaton, 22 Jackson v. Kassel, 31, 53 " V. Randal), 12, 41, 42 V. Walworth, 4 " V. Yate, 22 Jeffs V. Day, 103 Johnson v. Emerson, 43 " V. Moss, 14 Jones V. Greer, 8 " V. Gress, 12, 22 V. Leake, 30 Jones' vote, 13 K Kekendale v. McKrimmon, 47 Kennedy v. Brent, 69 " V. Patterson, 77 Kenny v. May, 87 Kerr V. Smith, 48 " v. Wilson, 47 Kidd v. O'Connor, 12 Kilner, ex p. 12 King V. England, iig " v. McDonald, 36 " v. Spurr, 76 Kingan v. Hall, 113 Kingsmill v. Warrener, 16,72, iii Kirk v. Almond, 22 Klein v. Klein, loi Kline v. Queen Insurance Co., 73 Krehl v. Great Central Gas Co., 16,74 Lambe, ex p. in re, Southam, 69, 72.94 Lamond v. Eiffe, 12 Lanark and Drummond Plank Road Co. V. Bothwell, 103 Lavis V. Baker, 49 Lawford v. Davies, 37 Leaming v. Woon, 9, 56, no Lee V. Morrow, 62 Leeson v. Leeson, 106 Lewis V. Whittemore, 70 Libby v. Cushman, 9 Lightner V. Steinagel, 119 Lincoln v. White, 14 Livingstone v. Smith, 36, 68, 81 L. and N. W. Ry. Co. v. Glyn, 73 Lovell v. Sheriffs of London, 88 Lovejoy v. Hutchins, 75 " v. Lee, 119 Loveridge v. Plaistow, 46 Lucas V. Dicker, 103 Luce V. Irvin, 23 Ludden v. Leavitt, 74 Luxon, ex p., in re, Pidsley, 91 Lyght v. Canute, 99 Lyman v. Smith, 48 Lyon V. Weldon, 87 M Macfie v. Hunter, 93, 106 Malloy V. Shaw, 19 Mamlock v. White, 36 TABLE OF CASES. XllL Mandell v. Peet, ii Markle v. Thomas, 76 Marks v. Hamilton, 73 Martin v. W. Derby Union, 7 Masurett v. Lansdell, 106 Matthews v. Ansley, 46 May V. Standard Fire Insurance Co.. 16, 82 Mearns v. G. T. Ry. Co. 8 Medcalfe v. Widdifield, 94. Metcalf V. Clark, 4 Myers v. Campbell, 30, 53 Miller v. Shackleford, 72 Mills V. Camp, 82 Mink V. Jarvis, 77 Mitchell V. Goodall, no Montford v. McNaught, 34 Montreal, Bank of, v. leaker, loi " V. Burnham, 43 " V. Harrison, 8 V. Taylor, 4 Moore v. Hicks, 56 " V. Luce, 9 Morgan v. Ide, 80 Morrill v. Keyes, 71 Morrison v. Lovejoy, 68 Mosier v. McCan, 41 Millins V. Armstrong, 16 Municipality of Augusta v. Muni- cipal Council of Leeds and Grenville, 19 Murray v. Simpson, 119 Mc McCormick v. Bullivant, no McCrea v. Waterloo Mutual Fire Insurance Co., 37 McDonald v. Burton, 8, 56 McDougall V. Gilchrist, 47 V. Waddell, 16 McFarland v. Farmer, 80 McGivern v. McCausland, 76 " V. TurnbuU, 103 McGregor v. Gaulin, 53 Mclleham v. Smith, 45 Mclntyre v. Brown, 23 McKenzie v. Bussell, 20, 28 V. Harris, 8, loi V. Reid, 23 McLaren v. Sudworth, 30 McLean v. Fisher, 13 " V. Pinkerton, 38 McLeod V. Fortune, 28, 77 McMaster v. Meakin, 16, 82 McMurty v. Munro, 34 McNamara v. Ellis, 31 McPhadden v. Bacon, 6 McPherson v. Reynolds, 74 N Nash V. Lucas, 36 N. B. Ins. Co. V. Moflfatt, 73 Neale v. Snoulten, 23 Neill V. Carroll, no Nerlich v. Malloy. 74 New Haven Saw-Mill Co. v. Fow- ler, 119 Nicholls V. Valentine, 77 Nickle V. Douglas. 76 Nicol V. Ewin, 100 Nordheimer v. Robinson, 80 Norris v. Carrington, 88 " V. Watson, 80 Northern Ry, Co. v. Lister, 8 North of Scotland Mortgage Co.,. re, 76 D O'Brien v. Norris, 79 Ockford V. Freston, 36 Offay V. Offay, 49- 51. j6, f ,, 99 Ogilvie V. Kelly, 23 Osborne, ex p., 11 Outwater v. Dafoe, 74 Ovens V. Bull, 80 Owens V. Purcell, 43 Oystead v. Shea, 88. Palk V. Kennedy, 43 Palmer v. Kodgers, 24 Pamost v. (-owan, 81 Patterson v. Perry, 119 Pawson V. Hall, 21, 23 Peacock v. Reg., 37, 88 Penwallow v. Dwight, 8& XIV TABLE OF CASES. People V. Hubbard, 71 " V. Schuyler, 70 Percival v. Stamp, 46 Perley v. Foster, 74 Perry v. Carr, 71 Peters v. Conway, 68 Phipps V. Beamer, 106 Picken v. Victoria Ry. Co., 106 Pierce v. Strickland, 87 Piatt V. Brown, 71 Play fair v. Musgrove, 73 Policy V. Lennox Iron Works, 82 Pollock V. Campbell, 45 Pond V. Stridmore, 82 Popple V. Sylvester, 53 Porritt V. Fraser, 99 Potter V. Carroll, 16, 72, 100, iii Powell V. Portherch, 22 Powers V. Scott, 119 Prentiss v. Bliss, 79 Price V. Peck, 76 " V. Stokes, 73 Proudfoot V. Harley, 56 Provincial Ins. Co. v. Shaw, 46 Q Quackenbush v. Snider, 24 E Racey v. Carman, 21, 24 Ransom v. Alcott, 69 Rapelje v. Finch, 65 Rapier v. Wright, 9, 56, 110 Rayner v. Mitchell, 77 Reams v. McNail, 35 Redway v. McAndrew, 43 Ree,' V, Ownby, 14 " v. Smith, 9 Berkshire Justices, 72, 94 , V. Davidson, 15 v. Gordon, 12 V. Leominster, 45 v. Nichol, 90, 94 V. Stewart, 9, 11, 12, 24 V. Rochdale Canal Co., 94 Reynolds v. Pearce, 109 Rice V. Wilkins, 75 Richards v. Chamberlain, no R. V. Reg. Rex Richardson v. Shaw, 106 Rinchey v. Stryker, 36 Ritchie v. Worthington, loi Roberts, in re, Goodchap v. Ro- berts, 53 Roberts v. Death, 9 Robertson v. Coulton, 6, 23, 28, 41 Robinson v. Grange, 76 Roblin v. Moodie, 36 Roden v. Eyton, 87 Rogers v. Crookshank. 28 Rohrback v. Germania Fire Ins. Co., 74 Romberg v. Steenbock, 6 Ross V. Cook, 47 " V. Grange, 73, 76 " V. Hurd, 21, 23 " V. Perrault, 53 " V. Philbrick, 74 Rowberry v. Morgan, 37 Rowe V. Jarvis, 119 Rowley v. Bayley, 23 " V, Rice, 71 Saffrey, ex p., re, Lambert, 38 Samis v. Ireland, 16, 89 Sanford v. Boring, 73 Sato V. Hubbard, re, 9 Savery v. Browning, 14 Scarfe v. Halifax, 77 Schaeffer v. Marienthal, 74 Scott V. Mitchell, 12, 19 ' Sexey v. Atkinson, 36 Sharpe v. San Panto Railway Co., 91 Shaw V. McKenzie, 10 Shedden v. Patrick, loi Sheen v. McGregor, 21 Sheldon v. Baker, 22 " V. Root, 79 Shelley v. Goring, 4 Shirley v. Jacobs, 22 Sifton V. Anderson, 52 Simey v. Marshall, 13 Simpson v. Dick, 23 Sinclair v. Chisholm, 8 " V. Robson, 9 Skinner v. Stuart, 74 Slaght V. West, 77 Slattery v. Turner, 72, in TABLE OF CASES. XV Smart v. Hutton, 76 Smart & Miller, re, 119 Smart v. N. & D. Rivers R. Co., 8 Smith V. Dobbin, 56 " V. Keal, 77 V. Niagara Harbour & Dock Co., 42 " V. People's Bank, 14 " V. Sanborn, 70 " V. Smith, 6 V. Wilson, 8 Smyth V. Nichols, ig Snarr v. Smith, 72, 106 Sneary v. Abdy, 69 Spicer v. Todd, 113 Spiers, ex p., 11 Spigener v. State, 16 Stadler v. Parmlee, 30 Stammers v. Hughes, 12 Standing v. Torrance, 8 Starr v. Moore, 75 State V. Foster, 35 " V. Lawson, 79 Stein V. Valkmhuysen, 12 Stephen v. Dennie, 46, 48 Stevenson v. McLean, 35 " V. Robins, 30 Stimson v. Farnham, 36, 74 St. John V. Rykert, 53 Stockton Malleable iron Co., re, 9 Stone V, Dean, 88 Storey v. Ashton, 77 Strange v. Toronto Tel. Co., 106 Sutherland v. Durable, 46 Swain v. Mizner, 71 Swartout v. Skead, 34 Swayne v. Crammond, 22 Swift v. Jones, 19 Sykes v. H. & O. Ry. Co., no Thompson v. Rose, 79 Thornton v. Wood, 14 Tilbury v. Brown, no Tilt V. Jarvis, 77 Tomlinson v. Goakey, 46 Toronto, Bank of, v. McDougall, 28 " re, 76 Treat v. Barber, 70 Trenfield v. Lowe, 13 Trenton Banking Co. v. Haver- stick, 4, 28 Trew V. Gaskell, 31 Tufts V. McClintock, 70 Turner and Imperial Bank, re, 106 Turner v. Bridgett, 106 " V. Fendall, 79 " V. Jones, no " V. Lucas, loi Tyler v. Ulmer, 75 1 Upper Canada, Bank of, v. Glass, 100 " V. Spafford, 20, 42 v. Vidal, 56 Utley V. Smith, 75 Venables v. Smith, 77 Victors V. Davis, 23 Viney, ex p., re, Gilbert, 37 Voorhees v. Bank U. S., 18 :t Tate V. Corporation of Toronto, no Taylor v. Brown, 73, 109 " v. Cheever, 9 Taylor v. Nicholl, 5 " v. Phillips, 45 Theirman v. Vahle, 27 Thirkell v. Patterson, 14 Thompson v. Adams, 81 V. Farr, 16, 35, 108, 109 " V. McKenzie, n9 Wadsworth v. Cheeny, 27 Wakefield v. Bruce, n, 20, 21, 39 " V. Fairman, 69 Walcott V. Keith, 71 Wales V, Bullock, 14 Walker v. Rooke, 9 Wallbridge v. Brown, 8,. 34 V. Lunt, 61 Wallace v. Parker, 88 " v. Cowan, in " V. Swift, 70 XVI TABLE OF CASES. Wallis V. Birks, 13 Walm^sley v. Dibdin, 23 WarmoU v. Young, 36 Warren v. De Burgh, 61 Waters v. Monarch F. and L. Insurance Co., 73 Watson V. Henderson, 106 " V. Mid- Wales Ry. Co., 103 " V. Severn, 34 V. Todd, 119 Watt V. Burnett, 48 Weeks v. Wray, 37 West V. Meserve, 75 " V. Williams, 62 " V. Thomas, 38 Wheeler v. Copeland, 22 " V. Farmer, 27 V. Smith, 119 Whiley v. Whiley, 56 White V, Lord, loi " V. Madison, 73 V. Sowerby, 23 Whitehead v. Firth, 99 Whitwell V. Brigham, 9 Widmeyer v. McMahon, re, 4 Wilds V. Blanchard, 80 Wilkins v. Peatman, 106 Willett V. Brown, 9, 12 Williams v. Babbett, 72 " V. Grey, 119 V. Jackson, 22 Williamt v. Merrier, 4, 45, 106 V. Piggott, 46 " V. Powell, 71 Williams, ex p., re, Jones, 38 Wilson V. Dundas, 9 " V. Gabriel, 103 " V. Guttery, 46 " V. Lane, 70, 71 " and Quarter Sessions, Huron and Bruce, i5, 35 " V. Wilson, loi, 106 Wilham v. Gompertz, 23 Wood V. Dunn, no Woodbury v. Long, 69 Woods V. Rankin, 119 Woolen V. Wright, 77 Wooster Coal Co. v. Nelson, 56 Worthington v. Boulton, 8 Wright V. Child, 76 " V. L.andN.W. Ry. Co., 76 Wynne v. Ronaldson, 37 Young V. Higgon, 37 Yourrell v. Proby, 72 ^ REVISED STATUTES OP ONTARIO. CHAPTER 68. CORRIGENDA. Page 70, line 3, after "u Maine, 24i,' add "but qucere as to sureties' liability in Ontario." See form of covenant, Schedule H to R. S. O. c. 16, page 224, Vol. I, R. S. O. read m 86, line 5, for " 45 Victoria,' 100, line I, do. loi, line I, do. 109, line 20, do. 116, line 8 from bottom, for ' 46 Victoria." do. do. do. Sheriff," read " Bailiff. V^AJ. V*'/ %A^^K7««« VV/ X^^^XX». \j r -Tr-*»a«: intent to defraud his creditors (^), and at the time of his so departing is possessed to his own use and benefit, of any real or per- sonal property (A), credits or effects therein, not exempt by lawfrom seizure (/'), he shall be deemed an absconding debtor (_/) and his property, credits or effects aforesaid, may be seized and taken {k) for the satisfying of his debts by a writ of attachment. C. S. U. C. c. 25, s. I. S.A.D. \:rH XVI TABLE OF CASES. Wallis V. Birks, 13 \Valm63ley V. Dibdin, 23 WarmoU v. Young, 36 Warren v. De Burgh, 6i Waters v. Monarch F. and L. Insurance Co., 73 Watson V. Henderson, 106 " V. Mid- Wales Ry. Co., 103 " V. Severn, 34 V. Todd, 119 Watt V. Burnett, 48 Weeks v. Wray, 37 West V. Meserve, 75 " V. Williams, 62 •' V. Thomas, 38 I Williamt v. Merrier, 4, 45, 106 " V. Piggott, 46 " V. Powell, 71 Williams, ex p., re, Jones, 38 Wilson V. Dundas, 9 " V. Gabriel, 103 " V. Guttery, 46 " V. Lane, 70, 71 " and Quarter Sessions, Huron and Bruce, 16, 35 V. Wilson, lor, 106 Wilham v. Gompertz, 23 Wood V. Dunn, no Woodbury v. Long, 69 Woods V. Rankin, 119 ■n' — \^n „ ■Wricht. 77 REVISED SLiTUTES OP ONTARIO. CHAPTER 68. An Act Respecting Absconding Debtors {a) . ITER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — AN ABSCONDING DEBTOR DEFINED. 1. If any person (b) resident (c) in who to be Ontario indebted {d) to any other per- M^aLconX son [e) departs from Ontario (/) with '''^ '^^^*°'- intent to defraud his creditors {g) , and at the time of his so departing is possessed to his own use and benefit, of any real or per- sonal property (/}), credits or effects therein, not exempt by lawfrom seizure (z), he shall be deemed an absconding debtor {j) and his property, credits or effects aforesaid, may be seized and taken (k) for the satisfying of his debts by a writ of attachment. C. S. U. C. c. 25, s. I. S.A.D. 2 ORIGIN OF ATTACHMENT. (a) The proceeding by attachment against the property of an absconding debtor as a means of obtaining payment by a creditor of his debt, was introduced at a comparatively early date in the legislation of this Province. More t'\an half a centm'y ago an Act was passed on the subject, reciting that it was "necessary for the protection of persons engaged in trade to afford the means of attaching the property of absconding debtors, that the same may be taken in execu- tion and sold for the benefit of their creditors" (2 Wm. IV, chap. v). It was considered that the rights conferred by that statute on attaching creditors were too extensive and inconsistent with the just rights of creditors, who had not adopted attachment proceedings but had obtained judgment and execution in the ordinary way, and three years after- wards that Act was amended by the Statute 5, Wm. IV., chap. V. The right of attachment was extended to small claims by the 12 Vict., chap. 69, which was repealed and its provisions extended to Division Courts under the general Act establishing these courts, known as 18 and 14 Vict., chap. 58. The two statutes first mentioned contained the law relating to attachments against absconding debtors in the Superior and District and afterwards County Courts, until the pass- ing of the Common Law Procedure Act in 1856, when they were expressly repealed by the 818th section of that Act, and provision made in respect to proceedings against abscond- ing debtors. The 48rd to the 58th sections of that Act inclu- sive, and shortly afterwards consolidated in the Consolidated Statutes of Upper Canada, chap. 25, form the basis of our present Statute. Since the repeal of the Insolvent Act, at- tachment proceedings have become frequent and necessary It is the only method in this Province at the present time by which the estate of an absconding debtor can be reached in a summary way and protected for the payment of his debts. The circumstances under which such proceedings can be taken, the means employed, the facts necessary to be WHO ARE SUBJECT TO ATTACPAIENT. 8 shewn, and the duties of those authorized to execute the process and render the property Uable to the just claims of attaching creditors are, in the opinion of the writer, of suffi- ci(^nt importance to demand legal discussion and elucidation. The present is almost too practical an age for us to inquu'e deeply into the origin of the proceeding by attachment. Its origin, however, is said to be of great antiquity in the com- mon law of England, but that part of it which forms so important a part of the legal jurisprudence of the different American States and this Province, finds its origin in the custom of Foreign Attachment of the City of London. Mr. Drake, in his work on Attachment, at section 4, says : " Nothing more distinctly characterizes the whole system of • remedy by attachment than that it is a special remedy at law, belonging exclusively to a court of law, and to be re- sorted to and pursued in conformity with the terms of the law conferring it ; and that where, from a conflict of jm'is- diction, or from other cause, the remedy by attachment is not full and complete, a Court of Equity has no power to pass any order to aid or perfect it." From the many fea- tures of similarity between our Act and the Statutes of most of the States of the American Union, it would appear that our earliest legislation on that subject must have been largely drawn from the experience of our neighbours. With so much in common in the legislation of that great country on this subject, with the legislation of our own Province, we may fitly bring from their legal sources very many authori- ties in their courts for our benefit and instruction, afford- ing, as they do, much light upon a branch of the law upon which the decisions of our own courts are quite limited. (b) WHAT PARTIES SUBJECT TO THE ACT. In several of the American courts it appears to have been a vexed question for a long time, whether foreign corpora- tions were subject to the remedy by attachment — Drake on 4 MUST BE A RESIDENT OF ONTARIO. Attachment, section 79. From the language of our statutt* it appears to he quite plain, that neither a domestic nor foreign corporation could be considered an absconding debtor within its plain provisions. The statute can have application to individuals only and not to corporations. An attempt to apply the first and second sections of the Act to defendant corporations will prove the correctness of the view advanced. There is no reason, however, for denying to corporations that may be creditors, the right to take pro- ceedings by attachment. The expression "any other person" in the early part of the first section can by the aid of the Interpretation Act be very properly held to include corporations; see R. S. 0. chap. 1, sec. 7, sub-se-js. 13 and 23; see also Trenton Bankinrf Co. v. Haverstick, 6 Halsted, 171. An attachment could not properly be issued against heirs, executors, trustees or others claiming merely by right of representation ; Jackson v. WaUworth, 1 Johnson's Cases, 372; Metcalf v. Clark, 41 Barbour, 45. But if any person in any of these representative capacities should render himself personally liable, proceedings by attachment could be taken : Matter of Galloway, 21, Wendell 32. A married woman could if liable to judgment be subject to attachment ; see Re Widmeyer v. McMahon 32, C. P. 187 ; Berry v. Zeiss, 32 C. P. 231 and cases cited ; Wil- liams v. Mercier, 9 Q. B. D. 337 ; In re Gearing, 4 App. E. 173. So also could a married woman be a plaintiff in attachment proceedings : Eev. Stat., Chap. 125, sec. 20 ; Ingram v. Taylor 46, U. C. R. 52; Hooper v. Maitland 7, P. R. 50; Shelley v. Goring 8, P. R. 36; Carroll v. Fitz- gerald 6, App. R. 93 ; Broiun v. NoHh, 9 Q. B. D. 52. (c) MUST RE A RESIDENT OF ONTARIO. It is almost a contradiction to say, that one who has absconded from the Province, car ]>.*operly be termed " a WHO IS A RESIDENT. resident of Ontario ;" but the meaning of the expression evidently is, that if the defendant lived in the Province up to and until his departure from it, he is "a resident " with- in the meaning of the Act. In Drake on Attachment, sec. 59, it is said, "a resident and an inhabitant" mean the same thing. A person resident is defined to be, " one dwelling or having his abode in any place." It was held under the Act of 2, Wm. IV. chap. 5, that the property of a person who usually resided in the United States, but who employed persons in the Province, and who came frequently to superintend their work, might be attached : Ford v. Lusher, 3 0. S., 428. In Taylor v. Nicholl, 1 U.C.E, 416 ; it was held that where a person usually residing in Scotland came to Canada to settle some affairs, and while here referred some disputes which had arisen concerning them to arbitration, and an award was made against him which was not payable until nearly two years after he had left the Province and returned to Scotland, and he had contracted no debts while here, that he did not come within the Absconding Debtors' Act, 2 Wm. IV., chap. 5. In Higgins V. Brady, 10 U. C. L. J., 268, it was held under the Consoli- dated Statutes of Upper Canada, chap. 25, and from which this Act was chiefly copied, that a debtor whose family resided in the United States, but who for several months was in this Province purchasing horses for the United States' army, and contracting debts here for horses so purchased, with the declared intention that he would move permanently into Canada, was a sufiScient resident of Upper Canada to be within the operation of the Absconding Debtors' Act. The present Chief-Justice of the Common Pleas Division, then Mr. Justice Wilson, said, (after repeating the facts just quoted) : *' I cannot say that this is not such a residence here as will make him answerable to the like process to which our people are subject, on the contrary I think it is, although it is by no means a change of domicile." fi NO ATTACHMENT AGAINST RESIDENT OF ANOTHER COUNTRY. It is submitted that it would be a fraud on our law to allow one of two foreigners to issue an attachment against the other who happened to be here on some temporary business, intending to return to his own country for a debt contracted there; see Frear v. Ferguson, 2 Cham. K. 144; Romberg v. Steenhock, 1 P. K., 200; Brett v. Smith, 1 P. K., 309. And it is further submitted that a resident of this country could not legally issue ai attachment against a citizen of another country who had come here for a tem- porary purpose: McPhaddm v. Bacon, 9 L. J. N. S.^ 226; Clements w. Kirhy, 7 P. E., 103; Robertson v. Coulton, 9 P. E., 18; Ex parte Gutierrez. In re Gutierrez, 11 Ch. D. 298 ; Butler v. Rosenfeldt, 8 P. E. 175 ; Smith v. Smith, 19 L. J. N. S., 158. It would appear that the word " resident " here used must receive a more liberal interpretation than when employed in some other Acts of Parliament; see Sinclair's D. C, Act 86, et seq., and the Act of 1880, at pages 22 and 34 : Ford V. Drew, 5 C. P. D., 59. In Ex parte Breull. In re Bowicy W. N., 1880, at page 198 on appeal from the Court of Bankruptcy, it was held that where a debtor's summons was issued out of the London Bankruptcy Court against a person who was in the employment of a Bank in the City of London, but who lived with his mother in one of the suburbs outside the district of the London Court, for a debt contracted in the city, proceedings were properly taken against him in the city Court. James, L. J., was of opinion that the debtor's residence was within the district of the London Court, on the ground that a man might Tairly be said to reside where he was to be found daily. In Higgins v. Brady, 10 U. C. L. J., at page 269., Wilson, J., says : " The Act of 1832 required that the creditor should have been an inhabitant of the Province. The Act of 1835 altered this and enabled any creditor, whether an inhabitant of the Province or not, to THERE MUST BE A DEBT. T issue such process. So the Act of 1832 was general in its language against all debtors, although its construction was limited to resident debtors only." In addition to the authorities here cited as to what constitutes a " residence ;" see Sinclair's D. C, Act 86, et seq ; Drake on Attachment, sees. 59 to 68, inclusive ; Sinclair's D. C. Act, 1880, pages 22 and 34 ; Martin v. IF. Derby Union, W. N., 1883, page 52. {(l) MUST BE INDEBTED. Does this word "indebted" mean that the debtor must be liable for a money demand, such as on a bond, bill of exchange, or other security for money, or for goods sold and delivered, money lent, or a like claim, or has it a more extensive meaning, comprising cases where the claim, though arising out of contract, presents damages of an unliquidated nature ? In the second Chapter of Drake on Attachment, sees. 9 to 37, inclusive, will be found an instruc- tive history of the progress of legal decision in the Ameri- can Courts on this subject. In the earlier times a limited meaning was given to the different statutes, m regard to the causes of action for which proceedings by attachment could be taken. Damages of an unliquidated nature were held not to be within the scope or object of such proceed- ings ; but there has been a gradual outgrowth of that opinion, and a decided tendency to enlarge the subject of attachment proceedings. The word " debt," " indebted," and kindred words have been held to include claims for unliquidated damages arising from contract, such as a breach of covenant, as well as moneys due on specialties or simple contracts. Our record of judicial decision, limited as it is, has not been in the same direction. The general opinion of our Coiurts and the profession, is that our statute cannot pro- perly receive that wid^ construction, which similar legisla- tion has received in the American Courts. Whether its 8 ATTACHMENT ONLY FOR SUMS CERTAIN. 1 I ! provisions could not be extended with advantage is a mat- ter for legislative consideration. In Clock V. Aljield, 5 0. S. 504, it was held under the statute of William, that the Court would only grant an attachment for sums certain, and where such an affidavit could be made as would enable a plaintiff without a judge's order to sue out bailable process. In Clark v. Ashjield, E. T. 7, Wm. IV., it was held that an attachment could not be granted for unliquidated damages. The word " indebted " is used in the Statute 2, "Wm. IV., chap. 5, as in our present Act. Debt for a penalty could not v^ell be said to be within the spirit and intention of the Act. It is submitted generally that all claims, which would be the subject of special endorsement, on a writ of summons, under Eule 14 of the Ontario Judica- ture Act, or of a special summons, under the 79th sec. of the Division Courts' Act, or which would be the subject of gar- nishment under any of our statutes, would be the subject of proceedings under this Act. The following decisions illus- trate the views of our courts on the subject of special endorse- ment : Jones v. Greer, 3 U. C. L. J. 91 ; Standing v. Torrance, 4 U. C.L. J. 235 ; Mearns v. G. T. R. Co., 6 U. C. L. J. 62 ; Mc- Kenziev.Harn8,10J].C.L.3.213; Bucllv. Whitney, 11. C. P. 240 ; Bank of Montreal v. Harrison, 4 P. R. 331 ; Sinclair V. Chisholm, 5 P. E. 270 ; Smart v. X. d. D. Rivers R. Co., 12 C. P. 404 ; McDonald v. Burton, 2 L. J., N. S. 190 ; North- ern R. Co. V. Lister, 4 P. R. 120 ; Worthington v. Boulton, 6 P. R. 68 ; Wallbridge v. Brown, 18 U. C R. 158 ; Hojje v. Ferris, 30 C. P. 520; see also Smith v. Wilson, 4 C. P. D. 392, S. C. 5, C. P. D. 25. As to what debts are the subject of garnishment, see Sinclair's D. C. Act 99, 147, and Sinclair's D. C. Act, 1880, p. 2, and cases therein cited, and Howell v. Met. District Railway Co., 19 Ch. D. 508 ; Chatterton v. Watncy, 17 Ch. DEBT MUST BE OVERDUE. 1). 259 ; Roberts v. Death, 18 L. J. N. S. 101 ; Walker v. Rooke, 6 Q. B. D. 631 ; Gordon v. Jennings, 9 Q. B. D. 45 ; In re Holland v. Wallace, 8 P. E. 186; Canadian Bank of Commerce v. Crouch, 8 P. P. 437 ; In re Sato v. Hidthard, 8 P. E. 445. As the law stands now attachment proceedings are not confined to legal debts only, but equitable claims would equally be within the scope of the Act : Wilson v. Dundas, W. N., 1875, 232 ; In re Coivans' Estate, Rapier v. Wright, 14 Ch. D. 638 ; Hall v. Lannin, 30 C. P. 204 ; Hope V. Ferris, 30 C. P. 520 ; Learning v. Woon, 7 App. E. 42 ; Chatterton v. Watney, 16 Ch. D. 378. The money must be overdue at the time the affidavit is made, otherwise the debtor could not be said to be " indebted" within the meaning of the Act: Willett v. Brown, 8. P. E.A^4v'/3«>v..^/C'/S^. 468 ; In re Stockton Malleable Iron Co., 2 Ch. D. 101 ; Drake on Attachment, sees. 13 to 32, inclusive. The case of In re Moore v. Liice, 18 C. P. 446, was decided upon the language of the Insolvent Act. Whether or not an attachment can be issued on a bill of exchange or promissory note on the last day of grace appears yet to be a matter of uncertainty : Sinclair V. Robson, 16 U. C. E. 211 ; Edgar v. McGee, 1 Ont. E. 287 , Reed v. Smith, 19 L. J. N. S. 12 ; Whittvellw Brigham, 19 Pick. 117. Holding collateral secm-ity does not impair the right of attachment : Cornwall v. Gould, 4 Pick. 444 ; Beckwith v. Sibleij, 11 Pick. 482 ; Whiticell v. Brigham, 19 Pick. 117 ; Taylor v. Cheever, 6 Gray, 146; Libby v. Cushman, 29 Maine, 429. A writ of attachment can issue at suit of the Crown, on forfeiture of a recognisance to appear, and the affidavit therefor can be made by the County Crown Attor- ney : Regina v. Stewart, 8 P. E. 297. Where several per- sons are liable for the same debt, the creditor may proceed by attachment against any one or more of them, in relation to whom any ground of attachment exists, without so pro- ceeding against the others : Chittenden v. Hobbs, 9 Iowa, 417 ; Austin v. Burgett, 10 Iowa, 302. 10 DEPARTS WITH INTENT. i (e) THE CREDITOR. See note (b) to this section. The "other person" here mentioned is referred to in the subsequent clauses of the Act as "the plaintiff." (/) DEPARTS PROM ONTARIO. The debtor must actually have left the Province before an attachment can issue. Should he be secreting himself in the Province to avoid arrest or service of process, or for any other purpose, yet he would not be subject to attach- ment against him as an absconding debtor. He must have actually quit the Province before this proceeding could be invoked. It is not necessary that the debtor should go to a foreign country to render his property subject to attach- ment. Going to another Province would equally be within the Act. (g) WITH INTENT TO DEFRAUD HIS CREDITORS. The intent with which the defendant departs from the Province is an important element of the case which the creditor has to make out. Merely departing is not sufficient ; but it must be made with some one or more of the intents mentioned in this section, and the onus is on the plaintiff of establishing it : Shaw v. McKenzie, 6 Sup. R., 181. The intent may be gathered from a variety of circumstances, which, if taken singly would establish nothing, but when taken together establish one of the intents referred to in the Statute. There is no difference in this respect between civil and criminal cases. The author of that invaluable ork, Drake on Attachment, says at section 89 : " It has never been considered, so far as I have discovered, that mere tem- porary absence from one's place of residence, accompanied with an intention to return, is a sufficient cause for attach- ment. Were it so regarded no limit could be set to the oppressive use of this process. Hence we find that usually the absence must either be so protracted as to amount il TEMPORARY ABSENCE. 11 to a prevention of legal remedy for the collection of debts, or be attended by circijmstances indicative of a fraud- ulent purpose." The same author goes on to say, referring to American cases : "No case is to be found justifying an attachment upon a casual and temporary absence of a debtor ;" see Fuller v. Bryan, 20 Penn. 144 ; Mandel v. Peet, 18 Ark. 236; Ex parte Spiers, *r . N., 1883, page 70. For an examination of the American cases on this subject the reader is referred to the citation of them in Drake on Attachment, from sections 39 to 67, both inclusive. In R. v. Stewart, 8 P. R. 297, Osier, J., gave expression to these words at page 300 : "A debtor who departs from Canada to avoid arrest on criminal process thereby voluntarily withdraws his person from the reach of civil process also, and may well be said to depart with intent to defraud his creditors though that be not his primary or even conscious intention. He comes also within the words of the statute as having departed with intent to avoid being arrested." It is sufficient for the creditor to shew that the debtor intends to defraud him without shew- ing an intention to defraud creditors generally, but himself only : Wakefield v. Bruce, 5 P. R. 77. Where a man in embar- rassed circumstances left the country without first making provision for the payment of pressing claims, it would be evidence of intent to defraud : per Lord Eldon, in Ex parte Osborne, 2 V. & B. 177. If a debtor after leaving the Pro- vince, in the first instance, for a proper object, protract his residence abroad or elsewhere for an unreasonable time, assigning no cause for his absence and leaving no funds, nor making any arrangements for the payment of his debts, it is submitted that such a case would be within the Act ; see Cumming v. Bailey, 6 Bing. 370. Ex parte Colin, 3 L. T., N. S. 90. The law can best judge of intention by a defendant's acts and if a debtor should leave the Province, and if the effect of his departure and absence was to delay or impede creditors in the recovery of their claims, it is 12 SETTING ASIDE ATTACHMENT. submitted that the intent to defraud would be complete ; see Ex parte Kilner, 3 Mont. & A. 722 ; Ex^Mrte Bourne, 16 Ves. 145 ; Ex parte Birch, 2 M. D. & D. 659 ; R. v. Gordon, Dears. C. C. 586. The question of intent can be tried by affidavit before a judge in Chambers, on an application to set aside the attachment : Jackson v. Randall, 6 P. K. 165. In that case Wilson, J., says at page 169 of the report : " The writ is not to issue because the defendant has departed the Province, as in Lamond v. Eiffe, 3 Q. B. 910, but because he has departed with intent to defraud." To set aside an attachment on the ground that the intent was wanting would require a strong case to be made out : Broivn v. Riddell, 13 C. P. 457 ; Jones v. Gress, 25 U. C. R. 594; Delisle v. DeGrand, 3 P. R. 105; Kiddv. O'Connor, 43 U. C. R. 193 ; Butler v. Rosenfeldt, 8 P. R. 175, and especi- ally at page 178, per Osier, J.; Willett v. Brotcn,8F. R. 468 ; Scott v. Mitchell, 8 P. R. 518 ; Stammers v. Hughes, 18 C.B. 527 ; Stein v. Valkinhiiysen, E.B. & E. 65; Hart v. Ruttan, 23 C. P. 613 ; Drake on Attachment, section 397 and fol- lowing sections. The application to set aside attachment must precede special bail or defence to the merits, and must be made promptly : Drake on Attachment, sec. 421 ; Regina v. Stewart, 8 P. R. 297. Any defect in the matevials on which an attachment is gi-anted may be oupplied by affidavits used by the defendant on an appli- jation to set aside the writ: Regina v. Steicart, 8 P. R. 297. fhe amount for which special bail is to be put in need not be mentioned in the order for the wilt. — Ih. In a debt due the Crown an affidavit made by the County Crown Attorney was held sufficient. — Ih. (hj DEBTOR MUST LEAVE PROPERTY. One of the pre-requisites of attachment proceedings is that the debtor must have to his own use and benefit real DEBTOR MUST LEAVE PROPERTY. 13 or personal property, credits or effects in the Province of Ontario, at the time of his departing. Should he have legally parted with all his property before he left, an attach- ment could not be issued, nor could it be issued if the pro- perty was only held intrust : Jones' Vote, 1 Hodgins' Election Cases, 163; McLean v. Fisher, 14, U. C. K. 617. But an equitable estate or interest in land for his own use and benefit would be "real property" and subject the debtor to an attachment; see Adamson v. Adamson, 7 A^ip. B,. 592; Trenfield v. Iiowe L. K. 4 C. P. 454 ; Wallia v. Birks, L. R. 5, C. P. 222; Sinmjv. Marshall, L. E. H, C. P. 269; Blair's Vote, 1 Hodgins' Election Cases, 21 ; S. C. 7, L. J., N. S. 219. It may be stated generally that where a debtor has such an equitable interest in real property, as would entitle him to specific performance of a contract in equity, such interest would be " real property" within the meaning of this section. See Story's Equity Jurisprudence, chap. 18, E. & J's Digest, 3602-3652, 4711. The cases in the American Courts are quite numerous on the question of what interest of a debtor in real estate is subject to attach- ment proceedings. Mr. Drake says at sec, 232: "It may be stated, however, that the general principle which confines the right of attachment of tangible property to such interests therein or descriptions thereof, as can be sold or otherwise made available under execution to satisfy the plaintiff's demand, applies as well to real as personal property." But under the statute we are considering, there are interests in land which would be subject to attachment which could not be sold under execution against lands ; see R. & J's. Digest 1428, et seq., and the cases cited. At section 234, Mr Drake also says: "Another estab- lished principle affects with peculiar fitness attachments of real estate, that the attachment can operate only upon the right of the defendant existing wheii it is made. If, prior to the attachment, he had sold and conveyed the land in good M NOT EXEMPT FROM SEIZURE. faith, but the vendee did not put the deed on record until afterward, but did so before a sale of the land under execu- tion, it cannot be held for the debt of the vendor " : Cox v. Mt7ner, 23, 111. 476; Savery v. Browning, 18, Iowa, 246; Reed v. Ownhy, 4, Mis. 204; Thirkell v. Patterson, 18, U. C. R 75, and especially at page 86 ; Wales v. Bullock, 10 C. P. 155 ; Eraser v. Anderson, 21 U. C. R. 634. Any land ac- quired by the defendant, after the Sheriffs return to the attachment could not be taken: Crocker v. Pierce 31, Maine, 177 ; nor could his interest as mortgagee simply : Smith v. People's Bank, 24, Maine, 185 ; Lincoln v. White 30, Maine, 291 ; Thornton v. Wood, 42, Maine, 282 ; but under our law the mortgage itself could be seized as a security for money. It does not appear to be necessary to the validity of an attachment of real estate, that the return should speci- fically state that the property is the defendant's. That will be presumed from the fact of the return : Johnson v. Moss, 20, Wendell 145. The authority of the sheriff to levy on an attachment continues until the return day of the writ, or until he has actually returned it, if he does so before that day. The fact that before the return day he endorsed on the writ a return of "no property found," but kept the writ in his hands, wcuidnot prevent his subsequently levying upon it, and making return of the levy at any time before the" return day : Courtney v. Carr, 6, Iowa, 238. Nothing can be done on the writ after its return day has expired : Dame v. Fales, 3 N. H. 70; Bank of Montreal v. Taylor, 15 C. P. 107. For a further discussion of this subject see the notes to section 13. (i) NOT EXEMPT FROM SEIZURE. The words " not exempt by law from seizure " were not originally in the corresponding clause of the Common Law Procedure Act, nor in the Consolidated Statutes of Upper Canada, chap. 25. Their first introduction is to be found WHEN DEEMED AN ABSCONDING DEBTOR. Id in the Eevised Statute now under consideration. In Rcgina V. Davidson, 21 U.C.R., at page 42, Robinson, C. J., is reported as saying in reference to the claim for exemption where the debtor had absconded and proceedings were taken at the instance of the Crown, and goods otherwise exempt were seized : " It is material to consider that in cases of attachment against the goods of absconding debtors there is no exemption." That is true as the law then stood, but with the words in question since introduced, that expression of opinion cannot apply. Whether or not goods otherwise exempt from seizure might, on the authority of an opinion expressed in a previous part of Davidson's case be seized on attachment under the 13th section of this act is a question. However that may be, these words have been inserted for a purpose, and it is submitted that the Legislature intended that attachments should only be issued where the debtor had property in this country beyond that which would be exempt from seizure under execution. As to what is exempt from seizure under execution, see Eevised Statutes, chap. 66, Sinclair's D. C. Act, 177. It is to be observed that the 2nd section of chapter 66 of the Revised Statute declares cer- tain goods " exempt from seizure under any writ." As the Statute is entitled "An Act Respecting Writs of Execution," the words which we have just quoted may have reference to writs of that class only, but if so the sheriff might be bound to recognize the exemption on the writ of execution after judgment recovered ; see Drake on Attachment, sec. 244, on the subject of exemption from seizure. 0) DEEMED AN ABSCONDING DEBTOR. W^hen all the necessary circumstances concur the person shall be liable to be proceeded against as an absconding debtor. The Act has given a statutory definition of an absconding debtor, and it is only necessary to shew that the case comes within the requirements of the Act : In re Wil- 16 WHAT PROPERTY LIABLE. 8on and the Quarter Sessions of Huron and Bruce, 23 U. C. R. 301 ; Spii/ener v. State, 62 Ala. 383 ; Caniphell v. Barrie, 31 U.C. R. 285, et seq., per Wilson, J.; Thompson v. Farr, 6 U. C. R. 390, per Robinson, C. J. (/i) PROPERTY MAY BE SEIZED AND TAKEN. It is necessary that the sheriff make a proper seizure of the debtor's property. As to the seizure of chattel property see Sinclair's D. C. Act, 173, et seq. The sheriff cannot make a valid contract for the sale of goods until he has made a proper seizure. Ex parte Hall. In re Townsend, 14 Chan. Div. 132. As to seizure generally, also see Hincks v. Sowerhy, 4 App. R. 113; Consolidated Bank v. Bickford, 7 P. R. 172 ; May v. Standard Fire Ins. Co., 30 C. P. 51 ; Craig \. Craig, 7 P. R. 209 ; McMaster v. Meakin 7 P. R. 211 ; Samisv. Ireland, 4 App. R., at page 140, per Patterson, J.; Fraser v. Page, 18 U. C. R. 327 ; McDougall V. Waddell, 28 C. P. 191. After seizure the sheriff can maintain an action for an injury to the goods by a wrong- doer : Krehl v. Great Central Gas Co., L.R., 5 Ex. 289-293, and notes to section 13 ; and proceedings may be taken against any one in possession of the debtor's property to deliver it up to the sheriff to whom the attachment is directed : Mullens v. Armstrong, M. T., 2 Vict. When real estate is attached the sheriff should enter and keep posses- sion to give operation to the attachment against strangers : Doe d. Creiv v. Clarke, M. T., 4 Vict. The attachment does not bind the debtor's goods until seizure mad-> : Potter v. Carroll, 9 C. P. 442 ; Kingsmill v. Warrener, 13 U. C. R. 18. As to the duty of the sheriff in seizing under the writ of attachment and the rights acquired by such seizure, see notes to section 13. PBOCEDURE FOR WRIT. 17 PROCEDURE TO OBTAIN WRIT OF ATTACHMENT. In the Superior Courts. 2. Upon affidavit (/) made by any plain- Proceedings ^•rc i_- .. J. / \ j.i. I upon affidavit till, his servant or agent (w), that any that the de- such person so departing (w) is indebted (o) Ibsconded,^ to such plaintiff in a sum exceeding one ^^'^^ hundred dollars (/>), and stating the cause of action (q), and that the deponent has good reason to believe (r), and does verily believe that such person has departed from Ontario (s), and has gone to (stating some place (t) to which the absconding debtor is believed to have fled, or that the deponent is unable to obtain any inform- ation as to what place he has fled to) , with intent to defraud («) the plaintiff of his just dues, or to avoid being arrested or served with process (v), and was, at the time of his so departing, (w) possessed of real or personal property, credits or effects, not exempt by law from seizure, to his own use and benefit in this Province, and upon the further affidavit of two other Further credible persons, that they are well' acquainted with the debtor mentioned in the first-named affidavit, and have good S.A.D. 2 affidavit. Writ of attachment to issue. 18 AFFIDAVIT FOR ATTACHMENT, reason to believe and do believe that such debtor has departed from Ontario with intent to defraud the said plaintiff, or to avoid being arrested or served with pro- cess, either of the Supe rior Courts of Com- mon Law, or any Judge thereof, or the Judge of any County Court, may, by rule or order, {x) direct a writ of attachment to issue from either of such Superior Courts, and may in such rule or order appoint the time for the defendant's putting in special bail, which time shall be regu- lated by the distance from Ontario of the place to which the absconding debtor is supposed to have fled, having due regard to the means of and necessary time for postal or other communication. C. S. U. C. c. 25, s. 2 ; 40 V. c. 7, Sched. A. (102). (I) THE AFFIDAVIT FOR ATTACHMENT. As will be seen by a reference to sections 83 and 84 of Drake on Attachment, in the American Courts, the due making and filing of the required affidavit is part of the necessary jurisdiction of the court in attachment cases. It could not be so considered under our statute, as the court or a judge must pass upon the affidavits, and if the attachment is ordered, so long as the order stands, parties could not in collateral or other proceedings go behind it and except to the sufficiency of the affidavits : Hall v. Brown, 3 P. R. 293 ; Buf- falo dtL. H. Ry. Go. V. Hemming way, ^2i U.C.R. 662 ; Voorhees v. Bank U. 8., 10 Peters, 449; Grignon v. Astor, 2 Howard, Sup. Ct., 319. There is a conflict of authority as to whether the affidavit should be entitled in the court or not. The Court ENTITLING AFFIDAVITS. 19 of Common Pleas in Hart v. Huttan, 23 C P. G13 ; relying on the authority oi Swift v. Jones, 6 U. C. L. J. 63, and Allman V. Kenaell, 8 P. R. 110, held that the affidavit should be entitled in the court in which it is used. The case of Darner v. Bmby, 5 P. R. 356, S. C. 7, L. J., N. 8. 182, following Ellerhy V. Walton, 2 P. R. 14, and Malloy v. Shaw, 6 L. J. N. S. 294, held that it was not necessary to entitle the affidavit in any court. The latest reported case on the subject is Scott v. Mitchell, 8 P. R. 518, where Armour, J. in Chambers, fol- lowed Ellerby v. Walton, 2 P. R. 147 and declined to follow Hart v. Ruttan, 23 C. P. 613, and held that affidavits uijon which an order for a writ of attachment against an abscond- ing debtor was issued, sworn before a commissioner who appended to his signature the words "A Commissioner in B. R.," &c., were sufficient. In view of this contrariety of decision the safest course would appear to be, to entitle the affidavits simply in the court (see In re Bun-owes, 18 C. P., at page 500. The Municipality of Augusta v. The Municipal Council of Leeds and Grenville, 1 P. R. 121 ; Smyth v. Nicholls, 1 P. R. 355 ;) until the question is either settled by statutory enactment or decision of the full court. The affidavits should not be entitled in any cause as there can be none until the issue of the writ, but the inser- tion of the style of cause would be merely surplusage : Hargreaves v. Hayes, 5 E. & B. 272, In re Burrotves 18 C. P. 493. This section requires the affidavit to shew not only that the defendant "is indebted to the plaintiff," but also "the cause of action." In cases of arrest it was always necessary to shew a good cause of action in the affidavit. The affidavit for arrest under our present statute, (R. S. 0., chap. 67, sec. 5), must show that the plaintiff "has a cause of action" agairst the person sought to be arrested. From an early date our courts appear to have adopted the same rule, so far as was possible in regard to the statement of cause of action for debts of a similar nature in affidavits for SiJI WHAT AFFIDAVIT SHOULD SHEW. attachment. The aifidavit should follow as nearly as possible the common affidavit of d'^bt for arrest of a debtor. Anon. 2, 0. S. 292. Where the " two other credible persons'* whose affidavits are required by this section reside far from the debtor, they should state the grounds of their belief: Bank U. 0. v. Spafford, 2 0. S. 873. In that case the deponents resided at Brockville, and the debtor at York, (Toronto). The debt should be as certainly sworn to as in an affidavit for an order to hold to bail : McKenzie v. Bussell, 8 0. S. 845. Where the affidavit stated that the claim was for money lent and advanced to the defendant, without saying by whom ; it was held defective. — Ih. So an affidavit which simply stated that the defendant "was well and truly indebted" to the plaintiff "for money lent and goods sold and delivered," without stating that the money was lent, or that the goods were sold and delivered by the plaintiff to the defendant would be insufficient : Handley v. Franchi, L. K. 2 Ex. 84; Gathrow v. Hagger, 8 East 106; Diamond v. Carttvright, 22 C. P. 494. Where the affidavits stated that the defendant was indebted to the pi untiffs in the amou-. of certain promissory notes which were described,, shewing them to be overdue and held by the plaintiffs, and thai the defendant had departed from the Province with intent to defraud the plaintiffs, it was held that the cause of action was sufficiently stated : Wakefield v. Brucey 5 P. B. 77. The affidavit must shew that the defendant is a resident of the Province : Higgins v. Brady, 10 U. C. L. J. 268. In the same case it was held that it was not sufficient to describe the debtor as "lately doing business" in tfpper Canada. Wilson, J., at page 269 of the report, says: "This affidavit describes the debtor as ' lately doing busi- ness in Chatham,' etc.; but all this might be true, and yet the debtor never have been in Canada in his life." In that case it was also held that the question of residence was not established by the use of the words that the debtor " has 4 DEBTOR MUST BE A RESIDENT. 21 departed from Canada and gone to the United States." The same learned Judge says on that point : " But all this may be true, and yet the debtor may never have been more than five minutes in Canada." It is not necessary that the plaintiff should swear that the debtor was residing within the Province if that fact is sworn to by other persons : Wakefield v. Bruce, 5 P. E. 77. It is suflBcient to shew that the debtor intends to defraud the plaintiff without shewing an intention to defraud creditors gener- ally. — lb. The affidavit must shew that the defendant is a resident of the Province, and is possessed of real or per- sonal property therein ; see Hart v. Ruttan, 23 C. P. 613, and notes to section 1. In the case just cited the defen- dant stated in his affidavit filed on the application to set aside the attachment that Lo was a resident, and possessed of property, and it was left undecided, whether or not such statement covered that omission in the plaintiff's affidavit, but the Court refused under the circumstances to set aside +he writ for want of such statement in the plaintiff's affidavit ; see also Drake on Attachment, section 90, (a). If proceedings by attachment are taken on a bill of exchange, it must appear expressly by the affidavits or can fairly be deduced from them, that the bill is overdue : Edwards v. Dick, 3 B. & Aid. 495 ; Racey v. Carman, 3 U. C. L. J. 204 ; Paicson v. Hall, 1 P. R. 294 ; Ross v. Hurd, 1 P. R. 158 ; Drake on Attachment, section 28, et 9eq. The affidavit must be such as perjury can be assigned on it if false; and whatever is necessary to show the plaintiff's right of action, must be expressly stated, per Vaughan B, in Townsend v. Burns, 2 C. & J. at page 471, but express or precise words are not necessary, per Dallas, C. J. in Skeen v. Macgregor, 8 Moore 108. The affidavit of debt ought to be certain and explicit and nothing left to intendment : Fricke v. Poole, 9 B. & C. 643. The affidavit should be direct and positive as to the existence f 22 CREDITOR SUING AS REPRESENTATIVE. of tne debt, and not merely argumentative : Sheldon v. Baker, 1 T. E. 83 ; Wheeler v. Copeland, 5 T. E. 364. "The cases of assignees, executors, etc., are by way of exception to that rule: then a party claiming under that exception must shew a case where it has been allowed. In those cases if he swears that he believes it to be true, it is as much as he can do, because the transaction in general does not come within his own knowledge," per Duller J. in Sheldon v. Baker, 1 T. E. at page 84 ; see also Swayne v. Crammond, 4 T.E. 176. When the claim is on promissory notes it is not necessary to shew to whom the notes were payable ; if the plaintiff is shewn to be the holder : Jones v. Gress, 25 U. C. E 594. The affidavit should shew a complete cause of action in itself without reference to books or other papers : Poivell v. Port- herch, 2 T. E. 65 ; Williams v. Jackson, 3 T. E. 575. Where it is impossible to swear positively, as where the cause of action arose from the nonpayment of bills at a distance or in a foreign country, it is sufficient for the party to swear that they were not paid "to his knowledge and belief" there or else- where : Hobson v. Campbell, 1 H. B. 245. Where the affidavit is made by a surviving partner, it should show that the other partner is dead : Edgar v. Watt, 1 H. & W. 108. The affi- davit on a bill or note should shew that it is unpaid : Kirk V. Almond, 2 C & J. 354, or some other circumstance from which that fact may be presumed, such as the date or time of acceptance, and at what period the note was payable, or that it was payable on demand, or on a day past or the like : Kirk v. Almond (supra) ; Jackson v. Yate, 2 M. & S. 148 ; but it is not necessary otherwise to state the date : Shirley v. Jacobs 3 Dowl. 101 ; Irving v^ Heaton, 4 Dowl. 688. Where a note is payable by instalments the affidavit should shew what instalments are due : Hart v. Myerris, 3 Tyr. 228. An affidavit stating that the debtor was indebted in a certain sum, upon the balance of a bill drawn by the creditor and accepted by the debtor, and due at a CLAIM FOR INTEREST. 23 day past, would be sufficient : WalmMey v. Dibdin,4i M. & P. 10. Intermediate indorsements on a bill or note need not be stated : Luce v. Irvin, 6 Dowl. 92 ; Byles on Bills, chap. 11. In an action against the drawer of a bill, the affidavit must shew presentment and notice of dishonor: Simpson v. Dick, 3 Dowl. 731 ; Witham v. Gompertz, 4 Dowl. 382, is to the contrary, but the later case of Hopkinson v. Salembier, 7 Dowl. 493, reiterates the same doctrine. An affidavit for interest must either shew an express contract for it, or that it is otherwise recoverable by law : Neale v. Snoulten, 2 C. B. 320 ; Pawson v. Hall, 1 P. R. 294. But it need not state when the interest began to run : White v. Soiverhy, 8 Dowl. 584. It is not necessary to allege that money was lent or goods sold or delivered to the defendant at his request : Victors v. Davis 1 D. & L. 984 ; Rowley v. Bayley, 11 Moore 383 ; Ellerby v. Walton, 2 P.R. 147 ; Ogilvie v. Kelly, 4 U. C. R. 393. But on a claim for work and labor, a request must appear : Hall v. Brush, T. T. 3 and 4 Vict. Where there are several promissory notes, the amount of each note should be mentioned : Ross v. Hurd, 1 P. R. 158. But see Mclntyre v. Broivn, 4 U. C. L. J. 85. Where some of the causes of action are properly stated and others not, the affidavit is good as to the former : Ross v. Hird (supra). The affidavit could not be made nor the writ issued on a Sunday : Hall v. Brush (supra). Drake on Attachment, sec. 187. Where there are several claims mentioned in the affidavit, the affidavit should shew an intent to defraud as to all: Brown v. Palmer, 3 U. C. R. 110; see also McKenzie v. Reid, 1 U. C. R. 396, and Barry v. Eccles, 2 U. C. R. 383. Should there be any variance between the .affidavit and the order, the latter would pro- bably be amended, and a defect in the affidavit might be allowed to be supplied by further affidavits : Robertson v. Coulton, 9 P. R. 16 ; Damer v. Busby, 5 P. R. 356 ; Ross V. Hurd, 1 P. R. 158 ; Brett v. Smith, 1 P. R. 309. 24 AFFIDAVIT IN ALTERNATIVE. The defects in the plaintiff 's affidavits may be supplied by what appears in the defendant's affidavits filed on an application to set aside the writ : Reg. v. Stewart, 8 P. E. 297 ; Drake on Attachment, sec. 90 (a). An objection to the form of the affidavit must be made before the time for putting in special bail expires : Palmer v. Rodgers, 6 U. C. L. J. 188 ; see, also, Racey v. Carman, 3 U. C. L. J. 204. From the case of Quackenbush v. Snider, IP C. P. 196, one would be disposed to think that if the affidavit included all the alternatives of the statute, it would be bad ; but Higgins V. Brady, 10 U. C. L. J. 268, is an authority to the contrary. In that case one of the alternatives shewed a sufficient cause of action. The current of American authority, though not uniform, is against the validity of an affidavit alleging one or the other of two or more distinct grounds for the issue of an attachment. In Drake on Attachment, at sections 101 and 102, it is thus laid down : — " Usually the plaintiff may allege as many grounds of attachment, within the terms of the law, as he may deem expedient. In doing so, the several grounds should be stated cumulatively ; and if any one of them be true, it will sustain the attachment, though all the others be untrue. An affidavit alleging one or the other of two or more distinct grounds, would be bad, because of the impossibility of determining which is relied on to sustain the attachment. Thus, under a statute which authorized an attachment — (1) Where the defendant is about to remove his effects ; (2) Where he is about to remove privately out of the country; and (3) When he absconds or conceals himself, so that the ordinary process of law can- not be served on him ; an attachment was obtained, on an affidavit that the defendant "was about to remove from and without the limits, or so absconds and conceals him- self, that the ordinary process of law cannot be served on him "; and it was set aside. The first member of the oath was plainly not within the statute, and though the latter AFFIDAVIT IN ALTERNATIVE. 26 ■was, yet it was rendered inefficient by its connection with the former, through the disjunctive conjunction or, whereby it became uncertain which state of facts existed. Subse- quently, the same court, in a similar case, so ruled again, and intimated that they would consider an affidavit in the disjunctive, as bad, although either of the facts sworn to might be sufficient. "Let it be observed, however, that where the dis- junctive or is used, not to connect two distinct facts of different natures, but to characterize and include two or more phases of the same fact, attended with the same results, the construction just mentioned would be inappli- cable. For instance, where the statute authorized an attachment when ' the defendant absconds or secretes himself,' it was considered that, from the difficulty of determining which was the fact, the language comprised but one ground, and the disjunctive or did not render the affidavit uncertain. 'It is,' said the court, 'often difficult, if not impracticable, for the creditor to ascertain whether his debtor absconds or secretes himself; he has to rely frequently upon such information as his family or friends will give him, which cannot always be confided in. Hence, to allow sufficient latitude to the creditor in making his affidavit, and to prevert failures, from having mistaken the cause why the debtor is liable to the remedy, the law has very properly provided for its issuance in the alternative.' " Under a similar statute, the same view has been ex- pressed in Tennessee. The language of the statute was, ' so absconds or conceals himself that the ordinary process of law cannot be served on him.' It was contended that ' -bsconds ' constituted one cause, and ' conceals ' an- other; but the court did not so hold. 'For,' said the court, ' although the two words are connected by or instead of and, yet the sense of the sentence shows that or is used 26 AFFIDAVIT IN ALTERNATIVE. \ copulatively, constituting both * absconds ' and ' conceals,' or either of them, a sufficient cause for suing out the attachment. In tlv ' ire of things, a plaintiff cannot tell whether a party i'j i'.. ' ^' conceals himself. He may sup- pose he ab8conds,wLcri ne > mly conceals himself, and vice versa. To compel him tc swear that the party is doing the one only, would invoi-'e f -^ p ' 'iff in endless difl&culty. Besides the question of consci/vnce tiiat must always exist with the party about to take the oath, he would be con- stantly in danger of having his attachment abated on the plea of the defendant, who, though he might not have absconded, was nevertheless concealed, or, if not conceal- ing himself, may have been absconding. We think, there- fore, that the words 'so absconds or conceals himself constitute but one cause." And so, in Mississippi, under a statute allowing attachment on affidavit that the defen- dant "hath removed, or is removing out of the State, or so absconds, or privately conceals himself, that the ordinary process of law cannot be served on him." The affidavit was in the very words of the statute, and was objected to, because in the alternative ; but the court held it sufficient, considering that the material point required by the statute was, that the ordinary process could not be served, and that the plaintiff might well know that, without knowing whether the defendant had removed, absconded or concealed himself. And in New York, an affidavit that the defendant "had secretly departed from this State, with intent to defraud his creditors, or to avoid the service of civil pro- cess, or keeps himself concealed therein with the like intent," was sustained. And in Wisconsin, an affidavit was considered good, which alleged that the defendant "has assigned, disposed of, or concealed, or is about to assign, dispose of, or conceal, his property, with intent to defraud his creditors." The affidavit need not be in the exact words of the statute, SUBSTANTIAL COMPLIANCE SUFFICIENT. 27 a substantial compliance with it is sufficient : Theirman v. Valile, 32 Indiana 400. The duty of the judge appears to be, not to decide whether the alleged facts are true or not, but whether they are sworn to. If sworn to, he is fully justified in ordering the proce ss to be issued, and cannot be affected by the subsequent ascertainment of the groundless- ness or falsity of the affidavit : Wheeler v. Farmer, 38 Cal- 203. In some of the American cases, the grounds of the deponent's belief were held necessary to be stated, so that their sufficiency might be determined by the officer issuing the writ, Drake on Attachment, 100 ; but our statute does not appear to require the affidavit to shew the grounds of belief, and to follow its words would be sufficient, Drake, sec. 107. Uncertainty in a material and necessary allegation in the affidavit will vitiate it, Drake, section 104 ; but surplusage not inconsistent with the substantial averment required by the statute will not, Drake, section 105. "All the elements of positiveness, knowledge, information, or belief, conjointly or separately, required by statute, should appear in the affidavit, or be substantially included in its terms ; or it will be bad," Drake, sec. 106. In an action against two joint debtors if the affidavit be insufficient as to one of them it will not authorise an attach- ment against the property of both : Hamilton v. Knight, 1 Blackford 25. The power of amendment owing to a defective affidavit is entirely of statutory creation, Drake, sees. 87 and 113; and in amended affidavits the obligations must relate to the time of suing out the attachment. If they refer only to the existence of the ground for attach- ment when the amendment is made, they will not sustain the writ : Crouch v. Crouch, 9 Iowa, 269 ; Wadsivorth v. Cheeny, 10 Iowa, 257. It will be observed that the writer has adhered to the analogy of proceedings to hold to bail as expressed by Eobinson, C.J., in the anonymous case mentioned in 28 AFFIDAVIT WHERE CORPORATIOK SUES. 2 0. S. 292 : in McKenzie v. Bvssell, 3 0. S. 345 ; in Clock V. Alfield, 5 0. S. 50*, and adopted by Hagarty, C.J., in Hart V. Ruttan, 23 C. P., at page 615. In practice it may be found that in some cases a close analogy cannot be maintained; see Rowland v. Rowe, 25 U. C. K. 467 ; Robertson v. Coulton, 9 P. E. 16 ; but it is sub- mitted that the practice, in regard to orders to hold to bail and for attachments are in very many respects the same. The plaintiff's affidavit must show that he is the creditor in the particular case : Handley v. Franchi, L. R. 2, Ex. 34 ; Rogers v. Crookshank, 4 L. J., N. S. 45 ; Diamond v. Cart- wright, 22 C. P. 494. One of several plaintiffs could, it is submitted, make the affidavit : Balkwellx. Beddome, 16 U. C. E. 203 ; Hewardy. Mitchell, 11 U. C. R. 625 ; McLeodv. For- tune, 19 U. C. E. 100. An affidavit, made by the president or other principal officer of a corporation, would probably be considered as made by the plaintiff : Bank of Toronto v. McDougall, 15 C. P. 475 ; Trenton Banking Co. v. Haver- stick, 6 Halsted, 171. In Drake on Attachment, sec. 87, it is said that, " There can be no doubt that a corporation, as well as a natural person may sue by attachment, though the statute may require the affidavit to be made by the plaintiff, without mentioning any other person by whom it may be made. The law which gives existence to the cor- poration, and which allows it to sue and be sued, necessarily confers on it the authority to act through its agents in any such matter." Where several persons are liable for the same debt, the creditor may proceed by attachment against any one or more of them in relation to whom any ground of attachment exists, without proceeding against the others : Chittenden v. Hohhs, 9 Iowa, 417 ; Austin v. Burgett, 10 Iowa, 302. No advantage can be taken to the affidavit after verdict, where the defendant appears and pleads to the merits, nor by demurrer, Drake, sec. 36. AFFIDAVIT BY SERVANT OR AGENT. (m) BY SERVANT OR AOENT. The affidavit should properly show, in 29 a distinct paragraph and not by way of description, that the de- ponent is the servant or agent (as the case may be), of the plaintifif for the purpose proposed : Hood v. Cronkite, 4 P. R. 279. If the affidavit does not show that the deponent is " servant " or " agent " of the plaintiff, it will be bad, Drake on Attachment, sec. 94. (n) PERSON DEPARTING. This has reference of course to the absconding debtor. It may be read as the person "who has departed;" see notes {b) and (/) to section 1. (o) IS INDEBTED. As to the natiure of a claim for which an attachment can issue ; see note (d) to section 1. (p) AMOUNT EXCEEDING $100. The Division Court has jurisdiction u^j to $100, and in certain cases to $200, and this statute is intended to make provision for cases beyond either sum. It will be observed that the 190th section of the Division Court Act applies to claims "for any debt or damages arising upon anj^ contract, express or implied," which this statute does not. By section 4, of "the Division Courts Act, 1880," the provision in respect to increased jurisdiction of these courts is extended to proceedings against absconding debtors; see Sinclair's D. C. Act, 1880, 13 note (g). (g) CAUSE OF ACTION. The cause of action must be stated. As to what causes of action are within this Act, and the proper manner of stating them ; see note (d) to sec. 1. 80 DEPONENT HAS GOOD REASON. (r) HAS GOOD REASON TO BELIEVE. 1. An affidavit that the plaintiff had reason to believe and not "good reason to believe" would be insufficient ! Meyers v. Campbell, 1 Cham. E. 31 per Macaulay, J. If a statute requires a fact to be sworn to in direct terms, it is not complied with by a party's swearing that he is " informed and believes " the fact to exist : Ex parte Haynes, 18 Wendell 611 ; Cadwell v. Colgate, 7 Barbour 253 ; McLaren v. Sudworth, 4 U. C. L. J. 233. Under a statute authorizing an attachment " where there is good reason to believe" the existence of a particular fact, an affidavit that " it is the plaintiff's belief" that the fact existed, was held insufficient ; he should have stated that he had good reason to believe and did believe it: Stevenson v. Bobbins, 6 Missouri 18. If the affidavit omitted to state either that the plaintiff had good reason to believe, or did verily believe the facts neces- sary to be deposed to, it would be insufficient: Cobb v. Force, 5 Alabama 468. Where a party was required to swear " to the best of his knowledge and belief," and he swore only to the best of his belief, the affidavit was held bad : Bergh v. Jayne, 7 Martin N. S. 609 ; so where he was required to swear that he "verily beheves," and he swore "to the best of his knowledge and belief" the affidavit was declared insufficient : Stadler v. Parmlee, 10 Iowa 23. Where depo- nent was required to state that the facts were within his personal knowledge, or that he is informed and believes them to be true, a positive oath of the facts was held suffi- cient, though he did not add that he had personal knowledge of them or believed them to be true ; it being considered that the positive oath implied both: Jones v. Leake, 11 Smedes & Marshall 591. And so a statute requiiring an affidavit "shewing" the existence of a certain fact, it was held that an affidavit of such fact as the deponent " verily believed" was good, which was in effect deciding that the i |:!'i WHERE DEBTOR ABSCONDS TO. 31 party's belief was a sufficient " shewing" ^ > fulfil the terms of the statute : Trew v. Gaakill, 10 Indiana 265; McNamara v. Ellis, 14 Indiana 516. The safest course is to follow the exact words of the statute ; see Jackson v. Kaasel, 26 U. C. R. 341. («) DEPARTED FROM ONTARIO. This of course is a necessary allegation, as to which see note (/) to section 1. {t) WHERE DEBTOR HAS GONE. As has been already remarked, a departure from Ontario to any other Province, would be within the Act. It is not necessary that the debtor should go to a foreign country. This part of the section presupposes inquiry as to where the debtor has gone, which it would always be best to make, and if his post-office address is ascertained, it should be stated, so that the order to proceed, might provide for mailing papers to him. (tt) WITH INTENT TO DEFRAUD. This is the chief ground of the debtor's offending, and for a discussion of which see note {g) to section 1. (v) TO AVOID ARREST OR SERVICE OF PROCESS. It will be observed that the intent is complete if any one of the alternatives is made out. The writer has only to repeat what has been said in note (l) to this section, that in view of the apparently contradictory state of the cases it will be safer not to insert in the affidavit the different cases of intent in the alternative ; but the affidavit would not be open to objection if the allegation was that the debtor had absconded with intent to defraud and to avoid being arrested or served with process. To avoid being arrested or served with process appears to be one alternative only ; see Drake on Attachment, sec. 102, and cases there cited. As to when 82 CORROBORATIVE AFFIDAVITS. a debtor may be arrested and the facts necessary to be shewn ; see R. 8. 0., chap. 67, R. & J's Digest, 188, 213, 4234. It is submitted that the word "process" here means any writ issued with a view of obtaining judgment against the debtor for the satisfaction of the creditor's claim. (w) FURTHER AFFIDAVITS. The affidavit of each of the two other credible persons is intended to be corroborative of the affidavit of the " plaintiff, his servant, or agent." It should shew the same intent as the former affidavit, and be governed by the same rules of law; see note (l) to this section. Every person who is compos mentis is now a "credible" witness. For form of this affidavit, see Appendix. (x) ORDER FOR ATTACHMENT. The order will only be granted on the affidavit's complying with the requirements of the Act. It should provide for the time within which the debtor is allowed to put in special bail. Of course the greater the distance and the more diffi- cult or tedious the means of postal or other communication^ the greater the time allowed. COUNTY COURT JURISDICTIOT 88 Tn County Courts. 3. Incase the sum claimed is within in cases with- . - , _ _, in County 'e jurisdiction of the County Courts (j/), court juris- any such Court or the Judge or acting ji^ges to Judge thereof, may in like manner, by^o'JsIue"'^ rule or order direct a writ of attachment to issue from such Court, and the pro- ceedings thereon shall be the same as in this Act provided. C. S. U. C. c. 25, s. 4. (y) COUNTY COURT JURISDICTION. It will be observed that the practice of the Superior Courts is applied to the County Courts. By the 19th section of the County Courts' Act (Revised Statutes of Ontario, chap. 43) the jurisdiction of these Courts is defined as follows : " Subject to the exceptions contained in the last preced- ing section, the County Courts shall have jurisdiction and hold plea : 1. In all personal actions where the debt or damages claimed do not exceed the sum of two hundred dollars ; 2. In all causes and suits relating to debt, covenant and contract, to four hundred dollars, where the amount is liquidated or ascertained by the act of the parties or by the signature of the defendant ; 3. To any amount on bail-bonds given to a sheriff in any case in a County Court, whatever may be the penalty ; and S.A.D. 8 u JURISDICTION OF COUNTY COURTS. Rev. Stat c. 53. Rev. Stat c. 54. 4. On recognizances of bail taken in a County Court, whatever may be the amount recovered or for which the bail therein may be liable. C. S. U. C. c. 15, s. 17. 5. In actions of replevin where the value of the goods or other property or effects distrained, taken or detained, does not exceed the sum of two hundred dollars, as provided in " The Replevin Act." See C. S. U. C. c. 20, s. 3. 6. In interpleader matters, as provided by " The Interpleader Act." See 27 V. c. 14, s. 3. It must, however, be carefully kept in mind that it is only /or a debt that an attachment can be issued ; see note {d) to section 1. As to debts within the jurisdiction of County Courts, see Billings v. Nicolls, 5 U. C. E. 622 ; Montford v. McNaiight, 3 U; C. L. J. 15 ; McMurtry v. Munro, 14 U. C. K. 166; Wallbridge v. Broivn, 18. U. C. K. 158 ; Furnival v. Saun- ders, 26 U. C. E. 119, S. C. 2 L. J., N. 8 245 ; Fleming v. Livingstone, 6 P. E. 63. In re Dixony. Snarr, 6 P. E. 336 ; Sivartout v. Skead, 11 L. J. N. S. 329 ; Watson v. Severn, 6 App. E. 559. FORM OF ATTACHMENT. 85 WRIT OF ATTACHMENT AND SUMMONS. 4. The writ of attachment shall also Contents of. contain a summons to the absconding debtor, and shall be in the form given (z) in the Schedule to this Act. C. S. U. C. c. 25, s. 5. (z) FORM OF ATTACHMENT. The Statute gives a form of writ, which, like other stat- utory forms, will be sufficient to follow : In re Allison, 10 Ex. 561 : In re Wilson v. Q. S. of Huron and Bruce, 23 U. C. E. 301 ; Thompson v. Farr, 6 U. C. K., at page 390. Any irregularity in the attachment would under the general power of amendment be amended almost as a matter of course. If the writ be in legal form, and issued from a court having competent jurisdiction, it will be a complete justification to the Sheriff or his officer in attaching the defendant's property, and in using to effect the attachment, all necessary force ; and there can therefore be no obligation on him to investigate whether the preliminary steps required for obtaining it have been pursued : Fulton v. Heaton, 1 Barbour 552 ; Booth v. Rees, 26 Illinois 45 ; State v. Foster, 10 Iowa 435. Although the process may be erroneous and voidable, that fact will neither prevent him from protecting himself by it nor justify him in omitting to do his duty in its execution : Watson on Sheriff, 67, 68 and 69 ; Stevenson v. McLean, 5 Humphreys 332 ; Reams v. McNail, 9 Humphreys 542. Nor has he anything to do with the question whether the debt is actually due. It may be that no cause of action exists ; 36 WHEN WRIT PROTECTION TO OFFICER. but with that he has no concern : for it is not his province to decide the question of liability between the parties : Livingstone v. Smith, 5 Peters 90 ; Mamlock v. White, 20 California 598 ; Ockford v. Freston, 6 H. & N., at p. 472. But if the Court had no power to issue the writ, the S' riff would, if aware of the fact, be a trespasser if he seized under it, for it would be a void process : E. & J's. Digest, 8525 et seq.; Warmoll v. Young, 5 B. & C. 663 ; Imray v, Magnajfy 11 M. & W. 267; Siimson v. Farnham, L. K. 7 Q. B. 175; Dennis v. WhetJiam, L. K. 9 Q. B. 345. When the officer attaches property found in the possession of the defendant, he can always justify the levy by the pro- duction of the attachment in legal form ; but when the property is found in the possession of a stranger claiming title, the mere production of the writ will not justify its seizure thereunder. Damon v. Bryant, 2 Pickering 411 ; Rinchey v. Stryker, 28 New York 45 ; Sexey v. Adkinson, 34 California 346 , King v. Macdonald, 15 C. P. 397 ; Roblin v. Moc die, 15 U. C. R. 185 ; Anderson v. McEwan, 8 C. P. 532 ; Barragan v. Sherwood, 11 C. P. 119. If a writ of attachment is placed in the hands of a person specially deputed to execute it, he has all the powers which may be exercised by the Sheriff in the premises, but he is not entitled of right to be recognized or obeyed as a Sheriff, but must shew his authority and make known his business, if required by the party who is to obey that authority. He can equally with the Sheriff break into a warehouse to get access to the goods where admittance is refused him : Bur- ton V. Wilkinson, 18 Vermont 186 ; but if he broke into a dwelling-house for the purpose the seizure would be void and the Sheriff would be held liable as a trespasser : Wat- son on Sheriff, 44 ; Attack v. Bramwell ; 3 B. & S. 620 ; Nash V. Lucas, L. R. 2 Q. B. 590; Anglehart v. Rathier, 27 C. P. 97 ; see further on this subject in the notes to section 13. DURATION OF WRIT. 37 5. Every such writ shall be dated (a) To be dated on the day on which it is issued, and shall issue and to be in force for six months from its date, (6) sk months, and may be renewed for the purpose of effecting service on the defendant, in like manner as a writ of summons may be renewed (c) under ** The Common Law Pro- cedure Act.'" C. S. U. C. c. 25, s. 6. Rev. Stat, c. 50. (a) WRIT TO BE DATED ON DAY OF ISSUE. Formerly all writs had to be tested in term ; (see the cases cited in Fisher v. Grace, 28 U. C. E. 312 ;) but in regard to most writs this has been changed by statute. (h) IN FORCE FOR SIX CALENDAR MONTHS. The writ is to be in force for six calendar months " from its date." The day of issue is excluded : Young v. Higgon, 6 M. & W. 49 ; Weeks y. Wray, L. K. 3, Q. B. 212 ; McCrca V. Waterloo M. F. Ins. Co., 26 C. P., page 437, in appeal, 1 App. E. 2J8: Laivford v. Davies, L. E. 4, P. D. 61; Clarke v. Garrett, 28 C. P. 75. An attachment issued on the Jirst day of February would, therefore, expire if unrenewed at twelve o'clock at night on the first of August, following. If the last day was a Sunday the writ would, as the law formerly stood, expire that day : Rowberry v. Morgan, 9 Ex. 730; Peacock v. The Queen, 4 C. B. N. S., 264 ; Wynne v. Ronaldson, 12 L. T. N. S., 711 ; Hughes v. Griffiths, 13 C. B. N. S., 324; Ex parte Ferrige. In re Ferrigt^, L. E. 20, Eq. 289 ; Ex parte Viney. In re Gilbert, 4 Chau. D. 794 ; Ex 38 EXPIRED WRIT VOID. parte Saffrey. In re Lambert, 5 Chan. D. 365 ; McLean v. Pinkerton, 7 App. R. 490. But now it could be renewed on the next day the offices were open, under the 467th Rule of the Judicature Act. Should the writ be allowed to expire before service, or what might under the 8th section be deemed service, all proceedings under it would fall to the ground, and should any property have been attached the right to further detain it would be at an end : Weston V. Thomas, 6 U. C. L. J. 181 ; Gardiner v. Juson, 2 E. & A. 188 ; Drake on Attachment 187 ( h), nor could the Court or Judge extend the time for renewal : Barker v. Palmer, 8 Q. B. D. 9. Ex parte Williams ; Re Jones, 46 L. T. N. S. 237. (c) RENEWAL OF ATTACHMENT. As has been shewn in the last note the writ will expire unless renewed. The renewal is to be " in like manner " as a writ of summons is to be renewed under the Common Law Procedure Act. Under the 27th sec. of that Act a writ may be renewed " from time to time." So also may a writ of attachment be renewed from time to time, but it can only be done during the currency of the writ. ATTACHMENT TO ISSUE IN DUPLICATE. 89 6. Every writ of attachment shall issue writ of in duplicate, id) and shall be so marked to issue in by the officer issuing the same (the costs '^"^''"*®' of suing out the same being allowed only as if a single writ issued) and one writ shall be delivered to the Sheriff to whom the same is directed, and the other shall be used for the purpose of effecting ser- vice on the defendant. C. S. U. C. c. 25, s. 7. (d) TO ISSUE IN DUPLICATE. The words are imperative, and the clerk has no discre- tion. The writ must be issued according to this statute, Ontario J. Act, Rule 4. In Toronto the writ was held to have been properly issued by the Clerk of the Process : Wakefield v. Bruce, 5 P. R. 77. As to service on the debtor, see the notes to sec 8. I^BBB 40 CONCURRENT WRITS. Plaintiff may 7. The plaintiff may, at any time current^Trits within six months from the date of the Sheriffs. original writ of attachment, without fur- ther order from the Court or a Judge, issue from the office whence the original writ issued, one or more concurrent writ or writs {e) of attachment, to bear teste on the same day as the original writ, and to be marked by the officer issuing the same with the word ^'Concurrents' in the mar- gin, which concurrent writ or writs of attachment may be directed to any Sheriff (/) other than the Sheriff to whom the original writ was issued, and need not be sued out in duplicate or be served on the defendant, but shall operate merely For attaching for the attachment of his real or personal proper y. property, ig) credits, or effects in aid of the original writ {h). C. S. U. C. c. 25, s. 10. nil (e) CONCURRENT WRITS MAY ISSUE. The plaintiff may " at any time " within sis months from the date of the original attachment, without any fm*- ther order, issue one or more concurrent writ or writs. As to the calculation of time within which concurrent writs may be issued, see note (6) to sec. 5. The clerk would WRIT IMPROPERLY ISSUED. 41 issue the concurrent writ or writs on praecipe. It would expire with the original writ of attachment. (/) DIRECTED TO ANY SHERIFF. The concurrent writ must, it will be observed, be directed to some Sheriff other than the one to whom the original writ was addressed. It means, of course, the Sheriff of some County or District in this Province. As to the duties of the Sheriff, under a writ of attachment, see the notes to sees. 4 and 18. (g) OPERATES TO ATTACH PROPERTY. The object of this provision appears to be to afford the means of seizing and taking property in as many counties in the Province as a debtor may have property therein. It is submitted that the Sheriff must, under a concurrent writ, attach, if possible, property in the same way as would be done under an original writ, by virtue of sec. 13, and after seizure of same he must deal with it in the same manner as he would under an original writ. (/t) SETTING ASIDE ATTACHMENT. It will be observed that an application to set aside an order to hold to bail, and the writ of capias issued upon it, but not to discharge the defendant from custody, must be made to the court : Darner v. Busby, 5 P. R. 356 ; Robert- son V. Coulton, 9 P. R. 16. Yet an application to set aside an order for attachment made by a Judge may be made to the court or any other Judge : Howland v Rowe, 25 U. C. R. 467 ; Jackson v. Randall, 24 C. P. 87. The court refused to set aside an attachment upon, the ground that the debtor had been previously held to bail for the same cause of action, and the bail had been discharged by a reference to arbitration : Mosier v. McGun, 3 0. S. 77. Should a 42 8ETTIX0 ASIDE ATTACHMENT. f III plaintiff not proceed within the time prescribed by the practice of the court his proceedings would be set aside : Bank of U. G. v. Spafford, 3 0. S. 78. Undue delay in moving would be a bar to the application to set aside the writ : Fisher v. Beach, 4 0. S. 118 ; K. & J.'s Digest, 2910. Where an action against an absconding debtor had been carried to judgment and execution against his lands, and he moved to set aside the execution for a variance between it and the judgment, and the plaintiff was allowed to amend ; held, that the defendant was afterwards too late to object to irregularities in earlier proceedings, as he should have brought them forward on his first motion : Dougall v. Lewis, T. T. 5 & 6 Vict. A person seeking to set aside an attachment against him on the ground that he never lived, nor was in this country, so as to make him come under the Absconding Debtor's Act, should make these facts appear clearly ; see note ( has allowed judgment to go by default without express legislative authority. I think the statute so far from putting him under any express disability supposes the contrary." From the principle of this case, it would appear to be law that all the plaintiff would require to prove, would be the amount of his debt, a liability would be admitted. The right to interest would have to be proved in the ordinary way. See the next note to this section. (s) HOW DAMAGES ASCERTAINED. Two courses are open to a plaintiff, one to take a verdict at a sittings of the Court, the other by reference under the /? ~ 197th section of the Common Law Procedure Act : See Har. ^//^ / C. L. P. Act, 215 ; Chapman v. DeLorme, 5 U. C. L. J. 138. '' ' The latter is the course usually adopted, being more expedi- tious and inexpensive. In either case it is submitted the .^> /^lA\ 52 AFFIDAVIT BEFORE EXECUTION ISSUES. plaintiff should first sign interlocutory judgment : Arch. Pract. 12 Ed. 994, and cases there cited : Lush's Practice, 3rd Ea. 791 e.t scq ; Har. C. L. P. Act, 216. At page 792 of hiri work, Mr. Lush lays down the practice as follows : " These proceedings presuppose that a judgment has been given, and hence if a writ of inquiry be sued out, or a refer- ence to the Master be obtained before judgment has been signed, the proceedings will be irregular. But it is now settled that the plaintiff is not bound to wait till the follow- ing day, but may sue out the writ, or obtain the reference immediately after judgment has been given ; and as the Courts will not inquire which of two acts, which may immediately follow one upon the other, was in fact done first, there will be no irregularity in issuing the writ, etc., first, if it be on the same day that judgment is signed." At page 794, the same learned writer says : " Although the plaintiff has in strictness of law a right to have them, (the damages) determined by a jury in all cases, yet he would not be allowed the costs of the inquiry where they might have been, or at all events where, by the course of practice, it has become usual to have them assessed by the Master." An appeal lies against a finding under the 197th sec. of the C. L. P. Act ; see sub-sec. 2 of that section. Under the statute of 2 Wm. IV. chap. 5, sec. 7, the plaintiff was obliged " to prove his cause of action in the same manner as if the general issue had been pleaded," and the courts strictly exacted it; see Sifton v. Anderson, 5 U. C. R. 305 ; but the present Act makes no such requirement ; the amount of damages being the sole inquiry. (t) AFFIDAVIT TO BE MADE. '^ The clerk of the court should see that this affidavit is made and filed before execution issues. It is difficult to say whether " agent here means a legal agent or not. It is. PLAINTIFF TO GIVE FULL CREDIT. 58 submitted that it does not, but must be taken in its general sense. The words "justly due" should be used; see Meyers V. Campbell, 1 Cham., E. 31 ; Jackson v. Kassel, 26 U. C. K. 841. A form of affidavit will be found in the appendix. (m) CREDIT FOR ALL PAYMENTS. The object of the legislature here is to protect the abscond- ing debtor, if possible, against the recovery by the plaintiff of more than he is justly entitled to. All " payments " made at any time before the making of the affidavit, are to be duly credited, and all " claims " which might be set off, or lawfully claimed by the debtor, at the time of making such last mentioned affidavit are also to be allowed. The last alternative is intended to cover any set-off which the debtor might have against the plaintiff, or any other claim, wnich could have been set up in reduction of the plaintiff's claim, or which in law should otherwise be allowed the debtor. As to the proper method of calculating interest where payments extend over a length of time ; see McGre- gor V. Gmdin, 4 U. C. R. 378; Barnmnv. Tiirnbull, 13 U.C.R. 277 ; Bettes v. Farewell, 15 C. P. 450 ; Ross v. Perrault, 13 Grant 206 ; Sinclair's D. C. Act, 135. Where a claim is payable otherwise than by written contract, interest may be allowed from the date of a demand in writing ; but on a claim for extra work and materials furnished by the plain- tiff, but not under a written contract, and no demand proved interest was disallowed : Inglis v. The Wellington Hotel Co., 29 C. P. 387. The plaintiff would have to prove his right to interest, as in an ordinary defended action ; see Lush's Practice, 3rd Ed. 794. As to when interest is recoverable; see Sinclair's D. C. Act 135, et seq. In re Roberts, Goodchaj) v. Roberts, 14 Chan. Div. 49 ; Hill v. South Staffordshire Ry. Co., L. R. 18 Eq. 154 ; St. John v. Rykert, 4 App. R. 213 ; Popple v. Sylvester, 47 L. T., N. S. 329; Law Reports' Digest (1882), 1983. 54 AMOUNT FOR WHICH EXECUTION TO ISSUE. {V) EXECUTION TO ISSUE FOR SUM SWORN TO. Should execution be maliciously issued for more than is due it would be actionable : Churchill v. Siggers, 3 E. & B. 929 ; but if consistent with the judgment, so long as that stood, no action would be maintainable: Huffer \. Allen, L. E. 2, Ex. 15. Should judgment be entered for more than the sum found to be due, the proper course would be to make application to amend the judgment-roll and writ of execution to the proper sum. DEFENDANT ALLOWED TO DEFEND. 65 BAIL. 10. The Court or a Judge at any time Court may before or after final judgment, but before dam to put in execution executed {w), upon an applica- ^^"^^ '^^''" tion supported by satisfactory affidavits (at), accounting for the defendant's delay and default and disclosing a good defence on the merits {y), may, having regard to the time of the application and other circum- stances, let in the defendant (z) to put in special bail and to defend the action, or may reject the application. C. S. U. C. c. 25, s. II. (iv) WHEN APPLICATION TO BE MADE. This application can be made any time before execution is executed. It certainly would be too late after the return of the writ by the Sheriff, " money made," and whether the money was actually paid over by the Sheriff or not could make no difference : Watson on Sheriff, 272, 273, 296 ; Bennett v. Bmjes, 5 H. & N. 391 ; Arch. Pract. 12th Ed. 681. (x) ON SATISFACTORY AFFIDAVITS. The affidavits must be such as satisfy the Court or Judge on the question of the defendant's delay and default and must disclose a good defence on the merits. As to a waiver of legal rights by delay, see E. & J.'s Digest, 1981 et seq. .• Arch. Pract. 12th Ed. 988 ; Har. C. L. P. Act, 64. The 66 DEFENDANT TO SHEW MERITS. ! latest case has now laid down the law that where no irreparable wrong will be done a plaintiff, who has obtained judgment by default, lapse of time is not a bar to the application to set it aside : Atwoocl v. Chichester, 3 Q. B. D. 722, and probably the same rule would apply here. {y) DEFENCE ON THE MERITS. The language here employed and that used in the 64th section of the Common Law Procedure Act is substantially the same, and the decisions under that section or the one in the Enghsh Act from which it is taken must apply here. The ordinary affidavit of merits would not be sufficient. The merits must be disclosed : Whiley v. Whiley, 4 C. B. N. S. 653 ; Anderton v. Johnston, 8 U. C. L. J. 46 ; McDonald v. Burton, 2 L. J. N. S. 190 ; The Wooster Coal Co. V. Nelson, 4 P. E. 343 ; Smith v. Dobbin, 37 L. T. N. S. 388,777 ; Proudfoot v. Harley, 11 C. P. 389 ; Bank U. C. v. Vidal, 15 C. P. 421. Any defence legal or equitable would be within the section : see In re Cowans' Estate, 14 Chan. Div. 638 ; Learning v. Woon, 7 App. R. 42. The defendant " need not state the whole defence with minute particularity," per Cockburn, C.J., at page 659 of 4 C. B. N. S. ; Bouchier v. Patton, 3 U. C. L. J. 48 ; Sinclair's D. C. Act, 101 et seq. ; Moore v. Hicks, 6 U. C. R. 27. {z) LET IN THE DEFENDANT. If the defendant makes out a case under this section the Court or Judge will grant him leave to put in special bail. He cannot defend the action without first putting in bail : Offay V. Offay, 26 U. C. R. 363. If the application is rejected the defendant may, on the authority of the last case, still question the amount of damages which the plaintiff claims. PUTTING IN BAIL. 57 11. The special bail {a) (whether put Defendant's . 1 . 1 . 1 • • 1 1 1 • property to in within the time hmited by the writ or be restored within such time as the Court or a Judge °nspecia"'"^' directs,) shall be put in and perfected in*^^''' like manner as if the defendant had been arrested on a writ of capias for the amount sworn to on obtaining the attachment ; and after being so put in and perfected, the defendant shall be let in to plead, and the action shall proceed as in ordi- nary cases begun by writ of capias. C. S. U. C. c. 25, s. 12. (a) SPECIAL BAIL. By section 39 of the C. L. P. Act, it is declared that, " Special bail may be put in and perfected according to the established practice." This practice the writer will attempt shortly to explain in the notes to this and the next following section. The 40th section of the C. L. P. Act enacts, that the condition of the recognizance of special bail shall be, " that if the defendant be condemned in the action at the suit of the plaintiff, he will satisfy the costs and condemnation money, or render himself to the custody of the Sheriff of the County in which the action against such defendant has been brought, or that the cognizors will do so for him." By the section under consideration, the special bail shall be put in and perfected in like manner as if the defendant had been arrested on a writ of capias for 68 BAIL TO WRIT OF CAPIAS. the amount sworn to on obtaining the attachment. The practice as to putting in special bail for a defendant arrested on a capias must therefore be referred to, and adopted in regard to putting in bail in cases of attachment. The bail must consist of two persons, one bail not being deemed sufficient : Arch. Pract., 12th Ed. 830 ; Lush's Pract., 3rd Ed. 714. By Eule 75 of the General Rules of Practice : Har. C. L. P. Act, 662 ; which, in so far as the putting in of special bail is concerned, these rules are unaffected by the Judicature Act ; it is declared that notice of more bail than two shall be deemed irregular unless by the order of the Court or a Judge. After the bail has been put in and perfected, the defendant shall be let in to plead, and the action shall proceed as in ordinary cases begun by writ of capias. As to the procedure in actions against absconding debtors after the defendant has been let in to plead under this section, see Rule 4 of the Judicature Act. ' i PUTTING IN BAIL. 59 12. Upon the defendant so putting in or proceeds and perfecting special bail {b), all his pro-' perty, credits and effects attached in that suit, (excepting any which may have been disposed of as perishable, and then the net proceeds of the goods so disposed of,) shall be restored (c) and paid to him unless there be some other lawful ground for the Sheriff to withhold or detain the same. C. S. U. C. c. 25, s. 13. (h) WHEN BAIL MUST BE PUT IN. Special bail must be put in within the time mentioned in the writ of attachment. The Judge's order makes pro- vision in that respect under section 2. If proceedings have been stayed or further time granted, then the defendant has, until the expiry thereof, to put in bail : Lush's Pract., 3rd Ed. 713. WHO MAY BE BAIL. A practising solicitor cannot be bail : General Rules, No. 79 ; Har. C. L. P. Act, 663 ; nor by Rule 77, can any person justify as bail, if such person has been indemnified for so doing by the attorney or solicitor for the defendant. Nor can a turnkey or keeper of a county gaol, or a person employed by the Sheriff : Har. C. L. P. Act, 663 ; Lush's Pract., 3rd Ed. 715 ; Arch. Pract. 12th Ed. 829, et seq. The bail must be " freeholders " or " housekeepers ": Rule 81. If the latter, the house must be within the jurisdiction of 60 HOW BAIL PUT IN. the Court: Hughes v. Stirling, 11 P. E. 168 (English); Lush'a Pract., 3rd Ed. 716. NUMBER OF BAIL. By Rule 75, it is declared that, ** notice of more hail than two, shall he deemed irregular unless hy order of the Court or of a Judge " : Har. C. L. P. Act, 662 ; see also Lush's Pract., 8rd Ed. 714; Arch. Pract., 12th Ed. 880. BEFOUE WHOM BAIL PUT IN. Bail can he put in before the Court or a Judge or a Com- missioner appointed to take hail under Rev. Stat., chap. 80. By the same statute, Judges and Clerks of County Courts can take all recognizances of bail in their respective Courts. See also Arch. Pract., 12th Ed. 833 ; Lush's Pract., 3rd Ed. 718; Har. C. L. P. Act, 36. RECOGNIZANCE OF BAIL. Care must he taken in drawing up the recognizance. It must state correctly the day of the month and the County in which bail is put in. The names of the parties should also be correctly stated, also the sum sworn to. The bail- piece may be amended with the consent of the bail : Arch. Pract., 12th Ed. 834-835 ; Daniell v. Jmnes, 2 P. R. 195 ; Lush's Pract., 3rd Ed. 720. For form of recognizance see appendix. AFFIDAVIT OF JUSTIFICATION. By the 81st General Rule of Practice: Har. C. L. P. Act, 664; it is declared that, "if the notice of bail shall be accompanied by an affidavit of each of the hail, according to the following form, and if the plaintiff afterwards except to such bail, he shall, if such bail are allowed, pay the costs of justification ; and if such bail are rejected, the defendant shall pay the costs of opposition, unless the HOW BAIL PUT IN. 61 Court or a Judge thereof shall otherwise order." The form of affidavit will he found in the appendix. As to the requirements of this affidavit, see Arch. Pract., 12th Ed. 887, et 8cq.\ Lush's Pract., 3rd Ed. 722, ct seq.; Har. C. L. P. Act, 064, et seq. The affidavit must shew, that each person justifying is worth douhle the amount sworn to l)y the plaintiff, his attorney, or agent, on issuing the attach- ment, over and above what will pay his just debts, and over and above every other sum for which he is then bail, except when the sum sworn to exceeds one thousand pounds, when it shall be sufficient for the bail to justify in one thousand pounds beyond the sum sworn to : Rule 84 ; Har. C. L. P. Act, 667. Although the form does not give it, the addition and true place of abode of each of the bail must be stated : Treasure's Bail, 2 Dowl. 670 ; Brown's Bail, 5 Dowl. 220. A defect in the affidavit of justification does not prevent the bail from justifying, it only deprives the defendant of the costs : Brown v. Ahrcnfeldt, 4 M. & W. 76 ; Warren v. De Burgh, 7 Dowl. 96 ; Lush's Pract., 3rd Ed. 724. AFFIDAVIT OF DUE TAKING OP BAIL. By section 2 of chapter 80 of the Revised Statutes, an affidavit of due taking of the recognizance of bail by some credible person is required. Every person comjtos mentis and of sufficient age is now " credible." When a Judge of a Superior Court takes bail, this affidavit is not required : Rev. Stat. chap. 80, sec. 4. It cannot be made by the Commissioner who takes bail : Wallhiidf/e v. Lnnt, Tay. 688. For form of affidavit see appendix. RECOGNIZANCE AND AFFIDAVITS TO BE FILED. The recognizance of bail and the affidavits of justification and due taking thereof, are to be filed in the office of the Clerk or Deputy-Clerk of the Crown (or Clerk of the County 62 NOTICE OF BAIL. Court, as the case may be) in the County in which tha recognizance of bail was taken : Kev. Stat., chap. 80, sec. 2 ; but if the recognizance is taken in a County other than that from which the writ issues, then the fib'ng should be in the office from which the writ issues : Huhhanl v. Milne, 1 L. J. N. S. 14. By section 3, when these are taken and filed : Lee v. Morrow, 25 U. C. R. 604 ; the recognizance shall be of the like effect and subject to exception as to the bail, in like manner, and within the same time as if taken in open Court. NOTICE OF BAIL. If the notice of bail is accompanied by the affidavit of justification required by Rule 81 : Har. C. L, P. Act, 664; and the plaintiff doea noi except to the bail by giving one day's notice of exception, under Rule 82 : Arch. Pract., 12th Ed. 840 ; " The recognizance of such bail may be taken out of Court witliout other justification than such affidavit " : lb. If the plaintiff excepts to the bail and they are allowed, he must pay the costs of justification : Rule 81 ; Har. C. L. P. Act, 664. To annex a copy of the affidavit of justification, and marked "copy," would be sufficient, or the lotice must state it to be a copy, and it must purport to be a copy of the affidavit so filed : West v. WiUiavis, 3 E. & Ad. 343 ; Lush's Pvact., 724. In the last named work, and at the same page, it is said, " Tho rule, though in terms it seems to direct that the affidavits themselves should be delivered with the notice, will be satisfied with the delivery of a cojiy." By Rule 85, if. is declared to be " sufficient in all cases if notice of justification of bail be given two days before the time of justification." When the notice of bail is not accompanied by a copy of the affidavit of justification, see Rule 83 ; Har. C. L. F, Act. 666 ; Arch. Pract., 12th Ed. 840, et seq. As jur statute requires an affidavit of due taking to be OBJECTION TO BAIL. 63 made auu "led, perhaps it would be better to serve a cop}' of that also with the notice of bail. For form of notice see appendix : Lush's Pract., 3rd Ed. 727. The notice must state the n aues of the bail, their residence and addi- tion correctly. Where the notice has been held insufficient, see Lush's Pract., 3rd Ed. 726 ; Arch. Pract., 12th Ed. 835, et scq. EXCErTIXG TO BAIL. The wi'iter cannot find the trace of any practice in this Province different from that observed in England in re- spect to the excepting to bail. In Lush's Practice, 3rd Ed. 728, it is thus laid down. " The exception is made by entering in a book kept for the purpose at the office where the bail-piece is filed, or in the caso of country bail, on the back of the bail-piece, the words, except against these bail : , , plaintiff's attorney ; ' and by giving a written notice thereof to the defendant's at!o"ney or agent as tho case may be. The notice is in tl-u"; form beiu^j; entitled in the Court and cause : " Take notice that I have excepted against the bail put in in this cause for the defendant, dated, etc." and signed by the plaintiff's solicitor. It is further laid down in Lush at page 729, that " if either the entry or the notice be omi+lod, the exception will be incomplete, even as it would seem, against the defendant, although Jjoth may be waived ns against him, by his giving a notice of justification." On exception being made to the bail by the plaintiff, the defen- dant's solicitor is bound to give two day's notice in writing to the plaintiff's solicitor, under Rule 85 : Har. C.L.P. Act 667 ; of his intention to justify, mentioning time and place. In the Superior Courts the notice should be for justification at Judges' Chambers in Toronto and in the County Court before the Judge of that Court. It is very doubtful if Local Judges of the High Court could act. A form of notice will I i r ' h! '^ i ^qVp G4 WHEN GOODS RESTORED. be found in the appendix. The bail-piece should be brought before the Judge with an affidavit of service of notice of justification, and notice of bail, and of a copy of the affidavit of justification. Unless the plaintift' can establish the insufficiency of either of the bail, they will be allowed : Lush's Pract. 3rd Ed. 730, ct seq. The Court or Judge will grant an order of allowance, when the bail will be consid- ered as perfected within the meaning of this section. If no exception be made to the bail, the same will be perfected after the time has expired for giving notice of exception. See Rule 82 : Har. C. L. P. Act 066 ; Arch. Pract. 12 Ed. 840. If the bail do not j'istify by affidavit, they will have to appear before the Court or Judge and justify. CHANGING BAIL. " The bail, of whom notice shall be given, shall not be changed without leave of the Court or a Judge." Eule 76, Har. C. L. P. Act 662 ; Arch. Pract. 12th Ed. 848 ; Lush's Pract. 3rd Ed. 734. LIABILITY OF BAIL. ' ' Bail shall only be liable to the sum sworn to by the affidavit of debt and the costs of suit, not fxceeding in the whole the amount of their recognizance." Piule 89, Har. C. L. P. Act 668. (c) GOODS TO BE RESTORED TO DEFENDANT. The provision in regard to Special Bail is for the benefit of the defendant, and one object in putting it in, is for the purpose of getting back his property. He may also have a good defence to the action, and with a view of establishing it in the only manner possible : ' '-espect of the perishable property which had been disposed of by him. The balance of the net proceeds of sale he would have to pay over to the defendant. The ame difficulty may arise as to the respective rights of the Sheriff and the defenda ^t in regard to the restoration of the property. Is it the duty of the Sheriff to take back the goods from whence he got them, or the duty of the defendant to go to the Sheriff for the goods ? The writer has been unable to find any expression of judicial opinion upon the point, but from the ovdina 7 etymological mean- ing given to the word, " restored " and in view of IlapcJje V. Finch, 14 U. C. E. 4G8, ho thinks the former is the correct view of it. As the plaintiff must, under section 17, advance all Sheriff's expenses ; the costs of the oelivery of the goods back to the defendant would be deductaoie from the sum so advanced, and would form part of the Sncriff's costs in the suit. Unless other good cause of detainer ; there being no writ of attachment or writ of execution or any other process authorizing the seizure or attachment of the goods, it would be the duty of the Sherifi' not to refuse a icsioration of them to the defendant. It might, however, be that some of the property attached should be restored and other portions of it not ; for instance, all book debts would be the subject of attachment, but not seizablo under an execution against goods. Yet, on special bail being put in, the defendant would, as against a writ ol fieri facias against goods, have a right to deal with such book debts as his own ; yet, in regard to ejrdinary chattels, such execution . ' a Sheriff's liands would be no bar to the restoration of such book debts S.A.D. ■«: *4 5 66 SHERIFF TO RESTORE GOODS. to the defendant. Should other writs be in the Sheriff's hands, it will be for him to consider what particular part, if not the whole, of the defendant's property is subjc .t to such writs, and then to restore only such of it as the defen- dant is entitled to. If real property has been taken posses- sion of, under attachment which it is the Sheriff's duty to do : Doe d. Crew v. Clarke, Y. T. 4 Vict.; he should, on special bail being perfected, deliver up possession of it to the defendant. Should '".he Sheriff omit, neglect or refuse to restore the property, he would be liable to the defendant in an action therefor, and also be subject to the summary jurisdiction of the Court as one of its officers. ATTACHMENT OF PROPERTY. •67 WHAT PROPERTY MAY BE ATTACHED. — INVENTORY, ETC. 13. All the property, credits and effects sheriff to r i_ T J Ui_ •11- 11 attach all the oi an absconding debtor, including all property and rights and shares in any association or ^^^^^'1^°^^ corporation, may be attached {d) in the same manner as they might be seized in eveciition ; and the Sheriff to whom any writ of attachment is directed shall forth- with take into his charg? or keeping all such property and effects (e) according to the exigency of the writ, and shall be allowed all necessary disbursements for keeping the same, and he rhall immedi- ately call to his assistance two substantial freeholders of his County, and with their aid he shall make a just and true inven- inventory to tory (/) of ail the personal property, credits and effects, evidence of title or debt, books of account, vouchers and papers that he has attached, and shall return such inventory signed by himself and the said freeholders, together with the writ of attachment. C. S. U. C. c. 25, s. 14. k:\ 68 WRIT TO BE PROPERLY ISSUED. {d) sheriff's duties and liabilities. The first duty of a Sheriff who is called on to execute a writ of attachment placed in his hands to be executed, is to ascertain that it was issued by an officer having legal power to issue it. If issued by one having no such power, it is RDsolutely void, and will afford no protection whatever to him who acts under it : Morrison v. Lnvejoy, G Minne- sota, 183 ; Drake on Attachment, 184, et seq. The same result would follow if issued from a Court of limited juris- diction for an amount clearly beyond the jurisdiction of such Court. But if the writ is in legal form, and issued out of a Court and by an officer having competent juris- diction, the Sheriff", or any one acting under his authority, is protected : Fidton v. Tleaton, 1 Barbour, 552 ; and with the liability of the defendant, or such questions, he has no concern : Livingston v. Smith, 5 Peters, 90. If a person is deputed to execute the writ, he has all the powers of the Sheriff' who deputed him, but, if required, should make known uis authority: Burton v. Wilkinson, 18 Vermont, 186 ; and ^b's should be by warrant in writing : Lush's Pract., 'M\\ Ed. 588. The authority of the Sheriff continues until the return day of the writ, or until he has actually returned it, if returned before that day ; Courtney v. Garr. 6 Iowa 238. A levy made after the return day, without a renc /p1 of the writ, would be of no avail : Dame v. Fiiay sell such articles last mentioned forthwith ; and the Sheriff shall hold the proceeds {m) of such ^^^'^[^0*° sale for the same purposes as he would *^^^*^*- hold any property seized under the attach- ment. C. S. U. C. c. 25, s. 15. ig) PERISHABLE PROPERTY. This provision is made with a view of realizing as much as possible out of the debtor's goods. The section contemplates three classes of property : (1) Horses, cattle, sheep or pigs ; (2) any perishable goods or chattels ; (3) or such other 6hattels as from their nature (such as timber or staves) cannot be safely kept or con- veniently taken care of. ^.s to the first class the words are clear and no doubt can arise. As to the stcond, the cir- cumstances of each particular case must determine the ques- tion whether or not they are the subject of sale. The third class includes a different kind of property from the other two. If, from its nature position or otherwise, the property referred to in the third class cannot be safely kept or con- veniently taken care of, then it too can be sold. The Sheriff must exercise reasonable judgment in determining the questions which may arise under this section. If he acted negligently or in an unreaRonable manner and loss occurred, he could be held responsible for it. The section does not limit the piv perty in the third class to " timber or staves " only. These words are used by way of example. Such m 86 SALE OF PERISHABLE GOODS. property as cordwood, tanbark, railway-ties, telegraph poles and other property of that description would equally be within the section. In addition to the power to sell here given, the legisla- ture has, by 4jgf Victoria, chapt'r 6, section 4, given a further right. It is in these words : " The Court out of which a writ of attachment issues, or a Judge having authority to make orders therein, may, at any time after a writ of attachment has been in the hands of a Sheriff or other officer for one month, direct such Sheriff or other officer to sell any goods or chattels, except chattels real, which have been attached under such writ. "An Older for sale may be made upon the applica- tion of any creditor having a writ of attachment or a writ of execution in the hands of the Sheriff, and shall be made wherever the Judge is satisfied that the alleged debtor has in fact absconded indebted to the applicant, and that the property attached, is not sufficient to pay in full the claims of the persons who have sued out writs of attachment or execution, but this provision shall not be construed to restrict the authority' of the Court or Judge to make an order in other cases ; and in all cases the Court or Judge may impose such terms as are deemed fitting." The month's time mentioned in the section just quoted, will exclude the day the Sheriff received the writ. It will be observed that the clause confines the sale to " goods and chattels except chattels real." Cheques, bills of exchange, promissory notes, bonds, specialties or other securities for money or policies of life assurance, would not be the subject of sale under this section ; see Arch. Pract. 12th Ed. 653, and cases there cited. Any creditor who has a writ of attachment or writ of execution in the Sheriff's hands can apply. It would seem that the language of this new section does not apply to Division Court attachments. For forms of affidavit and order see the appendix. APPRAISEMENT. 87 (h) APPRAISED AND VALUED. Having decided that the goods are the subject of sale under this section the next duty of the Sheriff is to have them appraised and valued "on oath by two competent persons." No provision is made for the appraisers being sworn by the Sheriff, as a Division Court Bailiff is empow- ered to do in attachment proceedings in that Court, under the 192nd section of the Division Courts Act. The oath had therefore better be in the form of an affidavit entitled in the Court and cause, a form of which will be found in the appendix. The appraisers must be sworn before they make their appraisement : Kenny v. May, 1 M. & Kob. 56. If the Sheriff should sell without an appraisement, he would be liable to an action ; but the sale to a bona fide purchaser would not thereby be void : Lyon v. Weldon, 2 Bing. 334 ; Campbell v. Goulthard, 25 U. C. R. 621. Both appraisers must be sworn : Allen v. Flicker, 10 A. & E. 640, and must be reasonably competent : Roden v. Eyton, 6 C. B. 427. The statute speaks of the goods being " appraised and vahied." If possible a separate valuation should be made of each article, but if from the nature of the property attached that cannot be done, then it should be done in the best manner possible. The Sheriff would not be con- cluded by the valuation : Denton v. Livingston, 9 Johnson, 96; but it will be considered prima facie, a just and fair valuation, and the onm would be on him to establish the contrary : Pierce v. Strickland, 2 Story, 292. (i) PLAINTIFF MAY GIVE A BOND. The bond here prescribed is intended as a protection to the defendant, to whom it must be made. The plaintiff has his election whether he will give the bond, and have the perishable property sold or not. If he do not so elect the Sheriff cannot sell. The option of giving the bond and m 88 BOND TO DEFENDANT. having a sale is entirely with the plaintiff. If the bond is not given, the Sheriff returns the goods under section 15. "When property is of such a nature, that an attachment of it would produce a sacrifice and great injury to the defend- ant, without beneiQting the plaintiff, it is not attachable. Such is the rule in relation to the defendant's private papers : Oystead v. Shed, 12 Mass. 606. This rule applies also in relation to property, which is in its nature so peculiarly perishable, that manifestly the purpose of the attachment cannot be effected before it will decay, and become worthless, as for instance fresh fish, green fruits and the like : Wallace v. Barker, 8 Vermont 440 ; Penhallow V. Dwight, 7 Mass. 34. It should clearly appear that the seizure of such property would not be producti\e of any benefit, in order to excuse the Sheriff in attaching it. {j) EXECUTED BY TWO FREEHOLDERS. The section does not prescribe any particular county in which the "freeholders" must reside; seeLovellv. Sheriffs of London, 15 East 320; nor does it declare that the plaintiff shall not be one of the obligors. To save all questions he had better not be one of them. For form of bond and affidavits see appendix. (k) BOND TO BE APPROVED OP BY SHERIFF. The Sheriff is bound to exercise reasonable care and judgment in taking the bond, and should he neglect to do so he would be liable. The bond must comply with the statute : Daniels v. Charsley, 11 C. B. 739 ; Peacock v. The Queen, 4 C. B. N. S. 264 ; Stone v. Dean, E. B. & E. 504 ; Norris v. Carrington, 16 C. B. N. S. 10. But a substantial compliance with the statute will be sufficient : Curiae v. Packard, 29 California, 194. The appraisement must be made before the bond is given, so that the penalty of the bond may be properly determined, viz.: double the amount of the appraised value of the property. SHERIFF TO HOLD PROr'JEDS. 89 (l) SHERIFF SHALL THEN SELL. The Sheriff should give six "clear" days notice of sale, but if any of the property is of such a nature as not to permit of the delay, he must sell " forthwith." The pro- perty must be bold by public auction and to the highest bidder, and any other mode of sale would not give a title : Ex parte Hall ; In re Townsend, 14 Ch. D. 132 ; Samis v. Ireland, 4 App. E. 118, and especially at page 141. (m) SHERIFF TO HOLD PROCEEDS OF SALE. This means the gross proceeds of sale, for the Sheriff is presumed to have had his costs and charges advanced to him by the attaching creditor, under section 17. See section 12 where '*net proceeds" are mentioned. I'he full proceeds of the sale are to lie in the Sheriff's hands in lieu of the goods sold. S'i'fi! 90 WHEN GOODS TO BE RESTORED. Such goods to 2.5. If the plaintiff, after notice to him- be restored if ' plaintiff fails self OF his attomev of the seizure of any to give suf- . , I'll 1 • ficient secur- articles enumerated in the last preceding "^' section, neglects or refuses to deposit such a bond, or only offers a bond with sureties insufficient in the judgment of the Sheriff, then, after the lapse of four days next after such notice, the Sheriff shall be relieved from all liability to such plaintiff in respect to the articles so seized, and the said Sheriff shall forthwith restore {n) the same to the person from whose possession he took such articles (o). C. S. U. C. c. 25, s. 16. («) GOODS TO BE RESTORED. Should any property of the description mentioned in section 14 be seized by the Sheriff, it would be his duty forthwith to give notice to the plaintiff or his solicitor of such seizure. The notice need not be in writing as the statute does not so require it: Regina v. Nichol, 40 U. C. R. 76 ; but as a matter of precaution it had better be so. The plaintiff has four days next after he receives notice of the seizure to give the bond. Should the notice be given by the Sheriff, for instance, on the first of any month the time for putting in the bond duly approved by the Sheriff would be ' WHEN SHERIFF RELIEVED. 91 up to twelve o'clock on the night of the fifth of the same month, and should that day fall on a Sunday it could probably be put in on the next day ; see note (b) to section 5. If the bond should not be put in within the proper time, it would be the duty of the Sheriff forthwith to restore the goods to the possession of the person from whom they were taken. If the bond should not be put in within the time, it could not be done afterwards as the statute makes no provision for that: Barker v. Palmer, 8 Q. B. D. 9. Should the Sheriff in collusion with the defendant or fraudulently refuse to approve of what might reasonably ba considered a sufficient bond, it is submitted that the plain- tiff should not be considered as having neglected or refused to give the necessary bond : see Batterhury v. Vyse, 2 H. & C. 42; Sharpe v. San Paulo Railway Co., L. R. 8 Chan. 697, 612; Ex parte Luxon; In re Pidsley, 20 Ch. D. 701 ; Sinclair's D. C. Act, 1880, page 19. (o) SHERIFF RELIEVED OF LIABILITY. So long as the Sheriff has the custody of the property attached, which it is his duty to have (see notes to section 13) his liability continues : Drake on Attachment, chapter 12. He should restore the goods to the possession of the person from whom they were taken. Whether he be the owner of them or not, the Sheriff would then be relieved of fm'ther liability as to such goods. 92 PROPERTY WITH DIVISION COURT OFFICER, Rev. Stat, c. 47. WHEN DIVISION COURT AT" ICHMENT SUPERSEDED. Proceeding if 16. If any Sheriff to v^hom a writ of Sheriff finds . - ,, , ^ property in attachment IS dehvered for execution, the hands of He ] ^ rr ^ ^1 Bailiff or iinds any property or effects, or the pro- Son°CoiSt" ceeds of any property or effects which have been sold as perishable (/»), belonging to the absconding debtor named in such writ of attachment, in the hands, or in the custody and keeping of any Constable or of any Bailiff or Clerk of a Division Court by virtue of any warrant or warrants of attachment issued ur'- r ' The Division Courts Act,'" such Sb. ' - shall demand and take {q) from such (. istable. Bailiff or Clerk, all such property or effects, or the proceeds of any part thereof as afore- said, and such Constable, Bailiff or Clerk, on demand by such Sheriff and notice of the writ of attachment, shall forthwith deliver {r) all such property, effects and proceeds as aforesaid to the Sheriff, upon penalty of forfeiting double the value of the amount thereof, to be recovered by such Sheriff, with costs of suit, and to be by him accounted for after deducting his SHERIFF TO OBTAIN PROPERTY. 93 own costs, as part of the property and g5^^j.'°^ '" effects of the absconding debtor ; but the Court may creditor or creditors who have duly sued judgment, out such warrant or warrants of attach- ment may proceed to judgment is) against the absconding debtor in the Division Court, and on obtaining judgment, and serving a memorandum of the amount thereof, and of the costs to be certified under the hand of the Clerk of the Divi- sion Court, every such creditor shall be entitled to satisfaction in like manner as, and in rateable proportion with, the other creditors of the absconding debtor who obtain judgment as hereinafter mentioned. C. S. U. C. c. 25, s. 17. Cp) PERISHABLE PROPERTY, ETC., WITH DIVISION COURT OFFICER. It is the duty of the Sheriflf to make all reasonable inquiry for such property or the proceeds of it in the hands of any Constable, Division Court Clerk or Bailiff under attachment from such Court ; see Sinclair's D. C. Act, 204. It will be observed that the section only refers to property or money held under Division Court attachment. Goods seized under an execution from a Division Court or the proceeds of sale in ihe officer's hands would not come within this section. Had the attaching creditor obtained judgment and had bis execution been in the Sheriff's hands, the rights of a pre- vious judgment creditor, under Division Court proceedings, could not be interfered with under this section : Rev. Stat. chap. 66, sect. 33 ; Macjie v. Hunter, 9 P. R 149. The attaching creditor cannot stand in any higher position where he has only issued an attachment. 94 DELIVERY OF GOODS TO SHERIFF. iq) SHERIFF SHALL DEMAND GOODS, ETC. On demand made by the Sheriff, the goods unsold or proceeds of any sold must be delivered up to him. The section does not require the demand to be in writing, so that it need not be : licgina v. Nichol, 40 U. C. E. 76. For precaution, however, it had better be so. (?•) MUST BE DELIVERED UP FORTHWITH. Where an Act has to be done " forthwith," the language implies ** prompt vigorous action without any delay " : Regina v. Berkshire, Justices, 4 Q. B. D., at page 471, per Cockburn, C.J. ; but the word must be construed with regard to the object of the statutory provision and the cir- cumstances of the case: Ex parte Lamb; In re Southam, 19 Ch. D. 169. The penalty for refusal of the Constable, Division Court Clerk or Bailiff, is fixed at double the value of the goods or proceeds, with costs of suit. If the amount sued for did not exceed $60, the Sheriff 'jould sue in the Division Court and up to $200 in the County Court : In re Apothecaries Co. v. Burt, 5 Ex. 363 ; Medcalfe v. Widdijield, 12 C. P. 411 ; Brash qui tarn v. Taggart, 16 C. P. 415 ; Austin V. Davis, 7 App. E. 478. The Sheriff could sue in the High Court for the smallest sum, but at peril of losing costs : Rex V. Rochdale Canal Co., 14 Q. B. 138, per Parke, B. (s) CREDITOR MAY PROCEED TO JUDGMENT. On obtaining judgment the attaching creditor in the Division Court is on the certificate of the Clerk of that Court entitled to participate equally with judgment creditors in other Courts ; see section 29. For form of certificate see appendix. SHERIFF S COSTS TO BE ADVANCED. 95 SHERIFF S COSTS. 17. The costs of the Sheriff (/) for seiz- sheriflfs costs cHid ing and taking charge of property, credits how paid. and effects under a writ of attachment, including the sums paid to any persons for assisting in taking an inventory, and for appraising (which shall be paid for at the rate of one dollar for each day actually required for and occupied in making such inventory or appraisement) shall be paid in the first instance by the plaintiff, and may, after having been taxed, be recov- ered by the Sheriff by action (w) in any Court, having jurisdiction to the amount, and such costs shall be taxed to the party who pays the same as part of the disburse- ments in the suit against the absconding debtor, and be so recovered from him. C. S. U. C. c. 25, s. 18. (t) sheriff's costs. The Sheriff's costs of seizure and taking charge of the property, including the expenses of persons making the inventory and appraisement shall first be advanced by the attaching creditor. This section provides that these costs may be taxed. It is again to be remarked that this statute 96 SHERIFF MAY SUE FOR COSTS. contemplates more thau a bare seizure such as was made in Gladstone y.Padwick, L. R. 6 Ex. 203. The section speaks of " seizing and taking charge of property." See the notes to section 13. {u) HE MAY SUE FOR SAME. Provision is here made that the Sheriff may sue for his costs, but they must Jirat be taxed. The section does not say whom he may sue. Certainly not the defendant, for there is no privity between them, so that it can only mean the plaintiff in the attachment suit, provided he has not previously advanced the costs and expenses. SECOND INVENTOBY UNNECESSARY. 97 18. The Sheriff having made an in- New writ not , . , 1 r • . to make new ventory and appraisement on the first writ inventory of attachment against any absconding '^^"'*'*® debtor, shall not be required to make a new inventory {v) and appraisement on a subsequent writ of attachment coming into his hands, nor shall he be allowed any charge for an inventory or appraise- ment, except upon the first writ. C. S. U. C. c. 25, s. 19. (v) SECOND INVENTORY NOT REQUIRED. The inventory and appraisement which the Sheriff is required to make, on the first writ of attachment will be found referred to in the notes to sections 13 and 14. Having performed the duty once, its repetition would be unnecessary. S.A.D. ':§ 1,-B i 98 WHEN ATTACHMENT UNWARRANTED. When defen- dant to re- cover costs of defence. COSTS IN CASE OF ATTACHMENT NOT WARRANTED. 19. If, at any time before execution issues, it appears to the Court upon motion {w) and upon hearing the parties by affidavit, that the defendant was not an absconding debtor within the true meaning of this Act, at the time of the suing out of the writ of attachment against him, such defendant shall recover his costs of defence, {x) and the plaintiff shall, by rule of Court, be disabled from taking out any writ of execution for the amount of the verdict rendered or ascertained upon reference or otherwise recovered in such action, unless the same exceeds, and then for such sum only as the same exceeds, the amount of the taxed costs of the defendant, and in case the sum so re- covered is less than the taxed costs of the defendant, then the defendant shall be entitled, after deducting the amount of the sum recovered from the amount of such taxed costs, to take out execution for the balance in like manner, as a de- fendant may now by law have execution lOr costs in ordinary cases. C. S. U. C. c. 25, s. 20. APPLICATION FOR 008TB. 99 (w) HOW APPLICATION MADE. The application must be made to the Court, but why provision is not made for applying co a Judge as well, is difficult to see. It must be made before exbcution issues, and that fact should plainly appear on the t\pplication. The fact that defendant was not an absconding debtor would have to be made out very clearly. See the notes to section 2. It is submitted, however, that if the defendant could shew any one of the pre-requisites of attachment proceedings wanting, his application must be successful. The first and second sections shew who shall be deemed an absconding debtor within the Act, and if the facts of the case do not shew the existence of all that is necessary to establish that fact, the defendant can take advantage of this section. A Judge in Chambers could not entertain the application: per Brett, J.A., in Baker v. Oakes, 2 Q. B. D., at page 173. (x) FOR COSTS OP DEFENCE. This means the taxed costs as between party and party. Costs as between solicitor and client to be taxable against the opposite party, must be the subject of statutory pro- vision : Whitehead v. Firth, 12 East, 165 ; Gray on Costs, chap. 13, page 181. A somewhat similar provision is to be found in section 343 of the Common Law Procedure Act in regard to improper arrests. It is submitted that if the defendant is held entitled to his costs of defence under this section, the plaintiff has no right to any costs : Burroivs v. Lee, Easter Term, 8 Vict. E. & H.'s Digest, 136 ; Hope v. Fenner, 2 C. B. N. S. 387 ; Deere v. Kirkhouse, 1 L. M. & P. 783 ; Porritt v. Frmer, 8 P. R. 430 ; Offay v. Offay, 26 U. C. R., at page 367, per Hagarty, J. The defendant would probably be allowed the costs of the application: Higson v. Phclan, 1 P. R. 24; Porritt v. Fraser, supra; Lyght v. Canute, 6 P. R. 181. i 100 PRIORITY AMONG CREDITORS. 20. Repealed by 4^ Vict, chapter 6, section 4, sub-section 4. Instead of the repealed clause the new statute contains the following section : "No writs of execution received by a Sheriff cv other officer after the receipt of a wrii of attach- ment, shall take priority of the writ of attachment, but all writs of execution placed in the hands of the Sheriff, or other officer, prior to the distribution of the proceeds of the effects attached, shall, subject to any priority given for costs incurred under the first writ of attachment, rank rateably in proportion to the sums actually due thereon, whether or not any of the writs of execution are, or is, founded upon a writ of attachment." On comparing this section with the repealed clause, it will be seen that the object of the legislature was to take away that priority, which a certain class of creditors could obtain imder the old section. All creditors having writs in the hands of the Sheriff or other officer, "prior to the distribution of the proceeds of the effects attached," are now entitled to rank rateably in proportion to the amounts actually due, and it matters not that some of such execu- tions may be founded on attachment proceedings. This amendment of the law would appear also to change the effect of section 28, and to do away with the six months' limit prescribed by section 30, and make the distribution of the proceeds the test of a creditor's right to participate. The following cases show how the section was intetpreted when in force : Bank B. N. A. v. Jarvia, 1 U. C. E. 182 ; Daniel v. Fitzell, 17 U. C. R. 369 ; Nicol v. Ewin, 7 P. R. 331; Caird\. Fitzell, 2 P. R. 262; Bird v. Folger, 17 U. C. R. 536 ; Bank U. C. v. Glass, 21 U. C. R. 39 ; Potter v. Carroll, 9 C. P. 442 ; Carroll v. Potter, 1 E. & A. 341 ; S. C. 7 U. C. L. J. 42 ; Hughes v. Field, 9 P. R. 127. FRAUDULENT JUDGMBNTS. 101 I 21. Repealed by 4^^ Vict, chapter 6, section 4, sub-section 4. As to attacking fraudulent judgments, see Bergin v. Pindar, 3 0. S. 674 ; Bank of Montreal v. Baker, 9 Grant, 298 ; Armour v. Carruthers, 2 P. R. 217 ; Caird v. Fitzell, 2 P. R. 262 ; Fifeo/i v. Wilson, 2 P. R. 374 ; Ritchie v. Worthington, 7 U. C. L. J. 208 ; Klein v. liCietn, 7 U. C. L. J. 296; McKenzie v. Ham«, 10 U. C, L. J. 213; White v. Lord, 13 C. P. 289 ; Bevan v. IF/ieat, 14 C. P. 51 ; Dickson V. McMahon, 14 C. P. 521 ; Girdlestone v. 2%e Brighton Aquarium Co., 4 Ex. D. 107 ; Turner v. Lucas, 1 Ont. R. 623 ; Fisher's Digest, 5049, 9584 ; Law Reports Digest, 2015 ; Rob. & Joseph's Digest, 1612, 4195 ; Shedden v. Patrick, 1 Macqueen, H. L. 535 ; Kerr on Fraud, 232 ; Drake on Attachment, chap. 11 ; Gammell v. Sewell, 3 H. & N. 617; Crawley v. Isaacs, 16 L. T. N. S. 529; Flower v. Lloyd, 10 Ch. D. 327 ; Abouloffv. Oppenheimer, 10 Q. B. D. 295. (Surely this section must have been repealed in mistake.) 11 102 DEBTS DUE ABSCONDING DEi^TOR. ATTACHMENT OF DEBTS DUE TO ABSCONDING DEBTOR. Proceedings 22. In casc noticc in writing (x) of the tonrpaymg wiit of attachment has by the Sheriff, or Sding ^^ by or on behalf of the plaintiff in such notic'e ofthe^'^^^' ^^^^ '^^^Y sctved upon any person seizure. owing any debt or demand to, or who has the custody or possession of any property or effects of, an absconding debtor, and in case such person after such notice pays any such debt or demand or delivers any such property or effects to such absconding debtor, or to any any person for the individual use and and benefit of such absconding debtor, he shall be deemed to have done so fraudu- lently, and if the plaintiff recovers judg- ment against the absconding debtor, and the property and effects seized by the Sheriff are insufficient to satisfy such judgment, such person shall be liable for the amount of such debt or demand, and for such property and effects or the value thereof. C. S. U. C. c. 25, s. 23. (x) NOTICE OF ATTACHMENT TO BE GIVEN. Parties who owed the absconding debtor, or cad the custody or possession of any property or effects of his, WHAT NOTICE SUrFICIENT. 103 might, in ignorance of the attachment proceedings, dis- charge their liability by payment of their debts, or delivering back the property. This "ection protects such debts or property for the benefit of the attaching creditor upon notice being given. The section says, "notice in writing." It is submitted however, that the notice would be good, although not in writing, if containing that infor- mation which the notice should if given properly, contain : Lanark dt Dmmmond^ Plank Road Co. v. Bothwell, 2 U. C. L. J. 229 ; Lucas v. Dicker, 6 Q. B. D. 84 ; Drake on Attachment, chap. 17. The notice in writing should not be omitted however, a form of which will be found in the appendix. After notice given, any payment made or property delivered up to the absconding debtor, or any one for him, would be no discharge, the statute making such " fraudulent." Dennison v. Knox, 24 U. C. R. 119 ; Jefis V. Day, L.R. 1 Q.B. 372; Watson v. Mid-Wales By. Co. L. R. 2 C. P. 593 ; Brighton Arcade Co. v. Dowling, L. R. 3 C. P. 175 ; Chishom v. Provincial Lis. Co. 20 C. P. 11 ; DePothonier v. DeMattos, E. B. & E. 461 ; Wilson v. Gabriel, 4 B. & S. 243 ; Dickson v. Swansea Vale Ry. Co. L. R. 4 Q. B. 44 ; Higgs v. Assam Tea Co., L. R. 4 Ex. 387 ; Re Assam Tea Co. Ex parte Universal Life Assurance Co. L. R. 10 Eq. 458 ; Re Lnperial Land Co. of Marseilles ; Ex parte Colborne <& Strawbridge, L. R. 11 Eq. 478 ; McGiverin v. Turnbull, 32 U. C. R. 407 ; Drake on Attachment, chap. 24. The statute does not contemplate the payment of the debt owing to the defendant, or the delivery of the property being ma4e to the Sheriff. His duty is simply conserva- tory of the rights of the attaching creditor, which when performed, will place the person to whom notice is given, so far as the circumstances will permit, in the position of a garnishee. Should the other property prove insufficient, then the debts or property and effects mentioned in this section would be liable for the deficiency. Should the m ■ .4 n 104 BY WHOM NOTICE GIVEN. other property prove sufficient, the parties owing the debts or demands, or who had the custody or possession of any property or effects concerning which, notice had been given, would be restored to their original rights and position. Should the plaintiff fail to recover against the original debtor in the attachment suit, the debts and property would be relieved. The notice may be given either by the Sheriff or by, or on behalf of the plaintiff in the writ of attach- ment. Whether the absence of authority to give such notice could be ratified is questionable ; see Sinclair's D. C. Act, 182 ig) The claim must be in the form of a " debt or demand ; " see notes to section 2, and not in the form of an unliquidated claim ; see also, Clarke v. Proudfoot, 9 U. C. E. 290. mil DEBTOR OBTAINING STAY OF PROCEEDINGS. 105 f*3. If after notice as aforesaid of a Defendant's writ of attachment, any person indebted by him^after to the absconding debtor, or having cus- mfy^oS tody of his property as aforesaid, issued iy) ^^^^1°^^^^°' for such debt, demand or property by the absconding debtor, or by any person to whom the absconding debtor has assign- ed such debt or property since the date of the writ of attachment, he may, on affi- davit, apply to the Court or a Judge, to stay proceedings in the action against himself, until it is known whether the p"operty and effects so seized by the Sheriff, are sufficient to discharge the sum or sums recovered against the absconding debtor, and the Court or Judge may make such rule or order in the matter as the Court or Judge thinks fit, and if necessary may direct an issue to try any disputed question of fact. C. S. U. C. c. 25, s. 24. iy) defendant's debtor sued. This section is intended to afford protection to the debtors of an absconding debtor, or those who may have the custody or possession of any of his property as mentioned in section 22. Should such persons be sued, then this provision gives m m 106 INTERPLEADER GENERALLY. 51 f;^, authority to stay the action until it is known whether the propei'ty and effects seized by the Sheriff are sufficient to discharge the amount recovered against the absconding debtor. The result of an application must, of course, depend on the circumstances of each particular case. An interpleader issue may, if necessary, be directed. As to the form of which, and the question to try, see Doyle v. Lasher, 16 C. P. 263 ; Snarr v. Smith, 45 U. C. K. 156. As to interpleader generally, see Fisher's Digest, 4970-4999 ; B. and J.'s Digest, 1892-1904-4578 ; Arch. Pract., 12th Ed., 1391 ; Lush's Pract., Srd Ed., 777 ; L. K. Digest, 1880, p. 1993, et aeq. ; Sinclair's D. C. Act, 214, et seq. ; Chitty's Forms, 11th Ed., 672; and the later cases of: Hills v. Kenny, 5 Ex. D. 313 ; Picken v. Victoria Ry. Co., 44 U. C. R. 372 ; Black v. Brouillard, 28 C. P. 107 ; Ghrke v. Farrell, 31 C. P. 684 ; Richardson v. SJiaw, 6 P. R. 296 ; Watson v. Henderson, 6 P. R. 299 : Wilkins v. Peatman, 7 P. R. 84 ; Carter v. Stewart, 7 P. R. 85 ; Craig v. Craig, 7 P. R. 209 ; Bosivell V. Pettigrew, 7 P. R. 393 ; Wilson v. Wilson, 7 P. R. 407 ; Strange v. Toronto Tel. Co., 8 P. R. 1 ; Masuret v. Lansdell, 8 P. R. 57 ; Phipps v. Beamer, 8 P. R. 181 ; Clarke V. Farrell, 8 P. R. 234 ; Can. B. of Commerce v. Tasker, 8 P. R. 351 ; Turner v. Bridgett, 9 Q. B. D. 65 ; Williams v. Mercier, 9 Q. B. D. 337 ; Hartmont v. Foster, 8 Q. B. D. 82; Cramer v. Matthews, 7 Q. B. D. 425 ; In re Turner v. Imperial Bank, 9 P. R. 19 ; Macjie v. Hunter, 18 L. .T., N. S. 75; Hunter V. Vanstone, 18 L. J., N. S. 366 : Coulson v. Spiers, 19 L. J. , N. S. 233 ; Leeson v. Leeson, 9 P. R. 103 ; Beaty v. Bryce, 9 P. R. 320. her the 3ient to conding course, se. An ls to the Lasher, As to 999; E. Jth Ed., 1880, p. Chitty's Hills V. U U. C. Farrell, ^atson V. E. 84 ; E. 209 ; son, 7 P. 'aauret v. ; Clarke Tasker, 8 lliams V. 3.D.82; urner v. [j. J., N. )ul8on V. E. 103 ; WHEN DEBTOR MAY BE SUED. 107 WHEN SHERIFF MAY SUE FOR OUTSTANDING DEBTS. 24. If the real and personal property, Debtor of de- 1 rr r it 'endant may credits and effects of any absconding be sued if de- debtor attached by any writ of attachment pertyseizedTs as aforesaid, prove insufficient to satisfy 1*°' s^at^y^"* the executions obtained in the suit thereon p'^'"'"''^- against such abscondingdebtor,the Sheriff having the execution thereof may, {z) by rule or order of the Court or a Judge, to be granted on the application of the plain- tiff in any such case, sue for and recover from any person indebted to such abscond- ing debtor, the debt, claim, property or right of action attachable under this Act, and owing to or recoverable by such ab- sconding debtor, with costs of suit, in which suit the defendant shall be allowed to set up any defence which would have availed him against the absconding debtor at the date of the writ of attachment, and a recovery in such suit by the Sheriff shall operate as a discharge as against such absconding debtor ; and such Sheriff shall hold the moneys recovered by him as part of the assets of such absconding debtor, and shall apply them accordingly. C. S. U. C. c. 25, s. 25. m n Hi!' , ly 103 ORDER FOR SHERIFF TO SUE. (z) PROCEDURE AND SHERIFF'S RIGHTS. This section permits, under certain circumstances, the Sheri£f to obtain an order for him to sue for and recover from any person indebted to the absconding debtor, any debt, claim, property or right of action, attachable under this Act, and which at the time of the application is owing to or recoverable by such absconding debtor, together with costs of suit. In such suit the debtor is allowed to set up any defence that he could have set up at the date of the attachment, if the action had been brought against him by the absconding debtor. It will be observed how extensive the language here employed is, in regard to the subject matter of the order. The words, "debt claim, property or right of action attachable under this Act," appear to com- prise nearly everything attachable of the nature of personal property, estate or efifects. Before application can be made it must be made clearly to appear that all the property, credits and efifects attached, real, as well as personal, are insufficient to satisfy the exe- cutions against the debtor. In Cleaver v. Fraser, 3 U. C. L. J. 107, the order was granted by Burns, J., on an ex parte application, and that practice has generally been followed since. In that case the afi&davits were made by the Sheriff and the plaintifif ; that of the Sheriff shewing that the real and personal pro- perty and efifects of the defendant, were insufi&cient to satisfy plaintiff's judgment, and that of the plaintifif stating the issuing of the writ of attachment, the recovery of the judgment, that it was still partially unsatisfied, that all the real and personal property of the defendant had been exhausted, and was insufi&cient to satisfy his judg- ment, and that several persons within the jurisdiction of the Com't were indebted to the defendant. It was held in the case of Thompson v. Farr, 6 U. C. K. 387, (the statute ORDER FOR SHERIFF TO SUE. 109 then allowing the attaching creditor to sue) that a creditor could only have a verdict for such part of the amount of a promissory note as was equal to the amount due to him by the absconding debtor. But this was owing to the words used in the 12th section of chapter 5 of the Statute 2nd Will. IV., then in force. The language of this section is quite different. It gives the right of action to the Sheriff after leave is obtained from the Court or a Judge, on the application of the plaintiff, and is not confined to part of a cause of action. The order for such leave would not be granted to sue claims generally ; but only such as might be necessary and reasonably sufficient, " to satisfy the executions obtained in the suit" against the absconding debtor. The order should give the names of the parties, their places of residence, the nature of the debt, and the amounts to be sued for. In Gann v. Thomas, 17 U. C. R. 9, it was held that the Sheriff should distribute money acquired by suit under this section, among the attaching creditors only. The recent statute: 4e^Vic., chap. 6, sec. 4; would appear to give all execution creditors an equal right to participate. From the concluding words of this section, and the case of Cann V. Thomas, supra, it appears to be pretty clear, that although one creditor may obtain the order for the Sheriff to sue, yet when he obtains the fruits of such suit the creditor who obtained the order has no greater rights than other execution creditors upon the moneys realised. To those who may have occasion to take proceedings under this section, it is recommended that reference be first made to : Thompson v. Farr, 6 U. C. R. 887 ; Cann v. Thomas, 17 U. C. R. 9 ; Taylor (Sheriff) v. Brown, 17 C. P. 387, and Reynolds (Sheriff) v. Pearce, 14 C. P. 369. The Sheriff is not bound to sue unless duly indemnified under section 26. The rights of the person sued are by this section preserved to him, and he can set up any defence that he ^ (^ % 1 ■ ■: ■ J ' J' I - ■ii ^ ill 110 RIGHTS OF DEBTOR. ! might have done, had the action been brought against him by the absconding debtor instead of the Sheriff. In the absence even of express statutory enactment, probably a debtor would equitably have all the rights of defence that he would have had if his creditor had sued. See Water- man on Set-off, sec. 17, and following sections. The Sheriff can have no greater rights than the absconding debtor had, therefore, if the debt was assigned before the issue of the attachment, the assignment of the debt would prevent the Sheriff's recovery : Clarke v. Proudfoot, 9 0. C. K. 290 ; Drake on Attachment, sec. 245. The same result would follow if the money was garnished : Holmes v. Tutton, 5 E. & B. 65 ; Tilbury v. Brown, 6 Jur. N. S. 1151 ; Turner v. Jones, 1 H. & N. 878 ; Sykes v. B. d- 0. Ry. Co., 22 U. C. R. 459 ; Tate v. Corporation of Toronto, 10 U. G. L. J. at p. 66 ; Culverhouse v. Wickens, L. R. 3 C. P. 295 ; Re Fair and Bell, 2 App. R. 632 ; Wood v. Dunn, L. R. 2 Q. B. 73 ; Mitchell v. Goodall, 5 App. R. 164 ; In re Coicans' Estate, Rapier v. Wright, 14 Ch. D. 638 ; Learning v. Woon, 7 App. R. 42 ; Sinclair's D. C. Act, 147 et seq. ; Act of 1880, 98 et seq. So also if proceedings were taken under the Mechanics' Lien Acts before the issue of the attach- ment : Drake on Attachment, 223 and cases there cited ; Rev. Stat. chap. 120 ; 41 Vic. chap. 17 ; R. & J.'s Digest, 2118; Burritt v. Renihan, 25 Grant, 183; McCormick v. Bullivant, 25 Grant, 273 ; Douglas v. Chamberlain, 25 Grant, 288 ; Broughton v. Smallpiece, 25 Grant, 290 ; Richards v. Chamberlain, 25 Grant, 402 ; Breeze v. Midland Ry. Co., 26 Grant, 225 ; Hynes v. Smith, 27 Grant, 150 ; Briggs v. Lee, 27 Grant, 464 ; Neill v. Carroll, 28 Grant, 30. It may be stated generally that the just rights of other parties, acquired before the execution of the attachment, could not be affected by an action by the Sheriff under this section. At section 223 of his work on Attachment, Mr. Drake says, "It is a well-settled principle, that an attaching BHERIFF S RIGHT TO SUE. Ill creditor can acquire, through his attachment, no higher or better rights to the property or assets attached, than the defendant had when the attachment took place, unless he can show some fraud or collusion by which his rights are impaired." See also, sec. 245 of the same work, and Kingsmill v. Warrener, 13 U. C. R. 18 ; Potter v. Carroll, 9 C. P. 442. The Sheriff has no better rights than the absconding debtor and the attaching creditor had. On recovery of judgment and subsequent death of the Sheriff, it would appear to be law that execution should properly issue in the name of his personal representative (after suggestion of death,) and not in the name of his successor in office : Dickenson v. Harvey, 6 P. R. 170. But if the Sheriff should die before judgment, the action should then be carried on under section 27, in the name of his successor. The "recovery in such suit" shall operate as a discharge as against the absconding debtor, and be a bar to any action that he might bring for the same cause. Should an absconding debtor return to the Province with promissory notes which had not been seized under attach- ment, he would have the right to sue on them : Slattery v. Turney, 7 U. C. R. 578. For form of affidavit and order, see appendix. I Hi i 112 PROCEEDINGS OF SHERIFF. Averment to 25. The declaration (a) in any such Sheriffs *de-" action by the Sheriff shall contain an in- ciaration. troductory averment to the effect follow- ing : A. B., Sherifif of (&c.) who sues under the provisions of The Act reapectincf Ab- sconding DebtorBf in order to recover from C. D., debtor to E. F., an absconding debtor, the debt due {or other claim according to the facta) by the said G. D., to the said E. F., complains, &c. C. S. U. C. c. 25, s. 26. (a) THE DECLARATION. As will be seen by reference to the 1st and 4th Orders of the Judicature Act, under certain circumstances tbe pro- ceedings in an attachment suit against an absconding debtor are to be taken in pursuance of that Act, and under other circumstances under the old practice. The writer is of the opinion that this suit by the Sheriff would be governed by the Judicature Act, as being an " action " under the 1st Eule, and that the statement of claim should show all that this section formerly required to be shown in a declaration. See the notes to the 24th section ; Wallace v. Cowan, 9 P. E. 144; Gampan v. Lucas, 9 P. R. 142; Beaty v. Brice, 9 P. R. 320. BOND OF INDEMNITY TO SHERIFF. 118 26. The Sheriff shall not be bound to sheriff not sue any party as aforesaid until the attach- until creditor ing creditor gives his bond with two suf-^g^n°JJ.'* '° ficient sureties, payable to such Sheriff by'"*" his name of office in double the amount or value of the debt or p "operty sued for, conditioned to indemnify (6) him from all costs, losses and expenses to be incurred in the prosecution of such action or to which he may become liable in conse- quence thereof. C. S. U. C. c. 25, s. 27. (h) SHERIFF TO BE INDEMNIFIED. This is simply giving to the Sheriff, by express enact- ment, an indemnity which at law all parties, who, before allowing their names to be used by others as plaintiffs in a suit foi the benefit of somebody else, are entitled to have : Auster v. Holland, 3 D. & L. 740; Spicer v. Todd, 1 Dowl. 806. If the Sheriff should unreasonably refuse to accept such bond, the Court or Judge could exercise summary jurisdiction over him, and he could be made responsible as well for any loss sustained thereby. The bond must not be to the Sheriff by name, but simply to " The Sheriff of the County of ," his name of office. The bond being a statutory one, the condition of it should carefully follow the words of the statute : Kingan v. Hall, 23 U. C. E. 503. A form of bond will be found in the Appendix. m i; I 1H S.A.D. 8 ih iii 114 ACTION TO CONTINUE. Sheriffs 27. In the event of the death, resigna- successor . . may continue tion or lemoval from office of any Sheriff after such action brought, the action shall not abate (c), but maybe continued in the name of his successor to whom the benefit of the bond so given shall enure as if he had been named therein, and a suggestion of the necessary facts as to the change of the Sheriff as plaintiff shall be entered of record. C. S. U. C. c. 25, s. 28. (c) ACTION NOT TO ABATE. At common Ixw all actions abated by the death of a plaintiff before judgment. The 228th section of the Common Law Procedure Act, and Kule 883 of the Judicature Act, placed the law on a reasonable basis. The action may be continued to judgment, in the event of the death, resignation or removal from office of the Sheriff in whose name such action was brought, in the name of his successor. " If execution is required after death of the Sheriff, it should be sued out in the name of his personal representative : Dickenson v. Harvey, 6 P. R. 170. No order appears to be necessary as was required by the C. L. P. Act, and as is required by the Judicature Act. The suggestion is simply entered of record, and the change is complete. The action should be brought in the name of the person who, for the time being is Sheriff. DISTRiBUTION OF MONEY. 115 WHEN DISTRIBUTION TO BE RATEABLE. 28. When several persons sue out writs Proceedings of attachment against an absconding sons take out debtor, the proceeds of the property and Ihe'Jame ab- effects attached and in the Sheriff 's ^^^o^J^j^s hands, shall be rateably distributed {d) among such of the plaintiffs in such writs as obtain judgments and sue out execu- tion, in proportion to the sums actually due upon such judgments, and the Court or a Judge may delay the distribution, in order to give reasonable time for the obtaining of judgment against such ab- sconding debtor. C. S. U. C. c. 25, s. 29. (d) DISTRIBUTION OF PROCEEDS. The distribution of the proceeds of property seized under attachmeHt will now be governed by the provisions of 46 Vict. chap. 6, sec. 4, sub-sec. 3. This new provision changes the effect of this section, so as to prevent certain creditors obtaining any priority over other execution creditors, and to give all creditors having executions in the Sheriff's hands at the time of distribution an equal right to participate in the proceeds. For decisions on the law as it formerly stood, see R. & J.'s Digest 6-8 and the notes to repealed section 20. 116 RIGHTS OF DIVISION COURT CREDITORS. I I WHEN JUDGMENT CREDITOR IN DIVISION COURT TO PARTICIPATE. Creditors un- 29. Evciy Creditor who produces a Court judg- certified memorandum from the Clerk of shareVan ^^Y Division Court, of his judgment as passu. aforesaid, shall be considered a plaintiff in a writ of attachment who has obtained judgment and sued out execution, and shall be entitled to share accordingly. C. S. U. C. c. 25, s. 30. (e) DIVISION COURT CREDITORS TO PARTICIPATE. Execution creditors in the Division Court have an equal right to participate with other creditors. As will be seen by the notes io the 28th section, and the repealed 20th sec- tion, the distinction between certain classes of creditors in respect to participation in the proceeds of the property has been abolished. It is submitted that in order to share in the proceeds of the property attached. Division Court cre- ditors must have their executions in the bands of the Sbwiife? A form of Clerk's certificate will be found in the appendix. For a discussion of the relative position of plaintiffs in the Superior and Division Courts, respectively, in respect to goods seized under attachment as the law formerly stood : see Francis v. Broion, 11 U. C. K. 559 ; Fisher v. Sulky, 3 U. 0. L. J. 89. ^Ml^':'J^ WHERE PROPERTY INSUFFICIENT. 117 I Ul. ,tj 30. In case the property and effects of who ^to be the abscondinsf debtor are insufficient to share if the ■ /- 1 1 1 1 • -rr property satisfy the sums due to such plaintms, proves in- none shall be allowed to share, (/) unless pay aii. their writs of attachment were issued and placed in the hands of the Sheriff for execution within six months from the date of the first writ of attr chment, or in case of a warrant of attachment, unless the same was placed in the hands of the Con- stable or Bailiff before or within six months after the date of the first writ of attachment. C. S. U. C. c. 25, s. 31. (/) WHO TO SHARE IN PROCEEDS. As will be observed in the remarks made to the next two previous sections all creditors, whether they issued attach- ments or not, who have their writs of execution in the hands of the Sheriff or Division Court Bailiff before distri- bution, are entitled to share in the proceeds, under the altered state of the law. The six months' limit here pre- scribed appears to be impliedly repealed by the statute, 46 Vict., cap. 6. I 118 RESTORING 8URPLU8. SURPLUS TO BE RESTORED. When all the 31. If after the period of one month seizing ere- r n • i r ditors are sat- next lollowing the return of any execution isfied, the re- • ,_ x.\ l. a cc ^ c maining pro- against the property and enects of any perty to be delivered up. absconding debtor, or after a period of one month from a distribution under the order of the Court or a Judge, whichever last happens, and after satisfying the sev- eral plaintiffs entitled, there is no other writ of attachment or execution against the same property and effects in the hands of the Sheriff, then, all the property and effects of the absconding debtor, or un- appropriated moneys the proceeds of any part of such property and effects, remain- ing in the hands of the Sheriff, together with all books of account, evidences of title or of debt, vouchers and papers whatsoever belonging thereto, shall be delivered to the absconding debtor or to the person or persons in whose custody the same were found, or to the authorized agent of the absconding debtor, and there- upon the responsibility of the Sheriff in respect thereto shall determine. C. S. U. C. c. 25, s. 32. (< btor has in fact absconded indebted t . applicant, id that the property attached i. ot suffi''ient to pay in full the claims of the persons w^ o have sued out writs of attachment, or execution, but this provision shall not be construed to restrict the authority of the court or judge to make an order in other cases; and in all cases the court or judge may impose such terms as are deemed fitting. (8) " No writs of execution received by a sheriff or other officer after the receipt of a writ of attachment, shall take priority of the writ of attachment, but all writs of execution placed in the hands of the sheriff, or otb-^r officer, prior to the distribution of the proceeds of the effects STATUTE OF 1888. 141 attached, shall, subject to any priority given for costs incurred under the first writ of attachment, rank ratably in proportion to the sums actually due thereon, whether or not any of the writs of execution are or is founded upon a writ of attach- ment. (4) " The twentieth and twenty-first sections of the Revised Stututt respecting Absconding Debtors are hereby repealed." w INDEX. A Abandonment of Seizure — All previous rights to property lost on, 71, 82 Absconding Debtor — Who is, I corporation cannot be, 4 married women may be within meaning of Act, 4 executors, trustees, heirs, &c., not unless personally liable, 4 must be a resident of Ontario, 5, 6, 7 must be indebted in sum actually due, 7 foreigner when construed as such, 5, 6 must have actually left Ontario, 10 must leave property, i, 12 if all property sold no attachment can issue, 13 if property held by, m trust cannot be attached, 13 may sue on liOtes not a Cached, after return, 72 entitled to surplus after attachments and executions, satisfied, 118 may sue for same if not restored at expiry of month, 118, 119 Abuse of Process — If sheriff guilty of, in effecting attachment, levy void, 69 Administrators — Not liable to attachment unless personally liable, 4 A FFIDAVIT — For Attachment : — in action on recognizance may be made by County Attorney, 9, 12 only necessary to show, in, that defendant within definition, 15 by plaintiff, his servant or agent, requisites of, 17 further affidavits of two credible persons necessary, 17, 18 sufficiency of, cannot be objected to in collateral proceedings while order stands, 18 whether should be entitled in a court, 18, 19 should not be entitled in any cause, 19 must shew that defendant indebted and cause of action, 19, 21 question of intent may be tried on affidavit in Chambers, 12 Defects in, may be supplied by defendant's affidavits on motion to set aside attachment, 12, 21, 24 or by further affidavits, 23 should follow common affidavit for arrest mutatus mutandis, 20 affidavits of two credible persons should show grounds of be- lief, 20 fei 144 INDEX. Affidavit — Continued. debt should be sworn to as in aflSdavit to hold to bail, 20 examples of sufficiency and insufficiency in stating cause of action, 20 must shew that defendant a resident and has left property, 20, 21 " lately doing business " insufficient. 20 must be such as perjury, can be assigned on, 21 plaintiff's right of action must be expressly stated, 21 and nothing left to intendment, 21 must be direct and positive, not argumentative, 21, 22 assignees, executors, &c., may swear on belief, 22 in action on promissory note plaintiff must shew he is holder, 22 should shew complete cause of action without reference to other papers. 22 when impossible to swear positively, belief sufficient, 22 by surviving partner should shew other partner deceased, 22 on bill or note should shew is unpaid, 22 if payable by instalments, what instalments due, 22 " for balance of note past due" sufficient, 22 in'-;rmediate endorsements need not be set out, 23 against drawer should shew presentment and notice of dishonor, 23 where several, amount of each should be mentioned, 23 for interest, must shew express contract or that recoverable at ' law, 23 need not shew when began to run, 23 for money lent or goods sold or delivered request need not be alleged, 23 for work and labor request must appear. 23 where some causes of action, properly and others improperly stated, good as to former, 23 cannot be made or writ issued on Sunday, 23 where several claims, intent to defraud must be shewn as to all, 23 variance between, and order, order would probably be amended, 23 objection to form of, must be made before time expires for bail, 24 whether bad, if it includes all alternatives of statute, 24, 25, 26, 31 need not be in exact words of statute, 26, 27 if necessary facts sworn to, Judge may make order, 27 grounds of plaintiffs belief need not be stated, 27 uncertainty in material and necessary allegation will vitiate, 27 in action against joint debtors, if insufficient against one, no authority for attachment against both, 27 amendments in, must relate to time of suing out attachment, 27 plaintiff's affidavit must shew he is a creditor, 28 one of several plaintiffs may make, 28 president or principal officer of corporation may make, for it, 28 no objection to, allowed after verdict where defendant appears and pleads to merits, 28 nor by demurrer, 28 INDEX. 145 Affidavit — Continued. by servant or agent, distinct paragraph as to service or agency should be inserted, 29 not by way of description only, 29 must shew plaintiff has good reason to believe departure, etc., 30 if positive statement required, information and belief insufficient, 30 form of, 123 form of affidavit of two other credible persons, 124 Proving Debt : — may be made by plaintiff, his attorney or agent, 50, 51, 52 must shew what amount "justly due," 50, 52 must be made and filed before execution issues, 50, 51 form of, 127 For leave to Proceed : — form of affidavit for order, 125 Of justification : — may accompany notice of bail, 60 if it does and plaintiff excepts to bail, he to pay costs if bail allowed, 61 if rejected defeidant to pay costs of opposition, 61 requisites of, 61 addition and true place of abode of bail to be given in, 61 defect in, does not prevent justification but deprives defendant of costs, 61 form of, 1 29 Of ice taking of bail. — See Bail Question of intent may be tried on in Chambers, 12 Agent — of plaintiff may make affidavit for attachment, 17 should shew agency in distinct paragraph, 29 of plaintiff may make affidavit proving debts, payments, etc. 5°. 52 Alternative- whether affidavit alleging cause of action in, good, 24, 25, 26, 31 is good if conjunctive and not disjunctive used, 31 Amendments — in affidavits for attachment must relate to time of suing out, 27 on variance between affidavits and order for writ, 23 of irregularity in writ, allowed as matter of course. 35 American Law- comparison with Canadian on absconding debtors, 3 authority of, 3 Appeal- lies from finding of Master on reference as to damages, 52 S.A.D. 10 kiw^i-i'mi 146 INDEX. Appraisers — sheriff to get assistance of two, to make inventory, 67, 82 must be freeholders, 67 inventory to be signed by, 67 need not be sworn before inventory made in cases where sheriff holds attachment, 83 otherwise in Division Courts, 83 no appraisement by, necessary except as to perishable goods, 83 must be sworn before appraisement of perishable goods, 87 whether sheriff can administer oath to, 87 Division Court bailiff can in Division Court cases, 87 both must be sworn, 87 should make separate valuation of each article, 87 sheriff not concluded by valuation of, 87 appraisement of perishable goods must be made before bond, 88 entitled to 9i per day each, 95 form of oath, 132 form of appraisement, 132 Arrest— departure to avoid, ground of attachment, 11, 17, 31 Association — rights and shares in, attachable, 67 Attaching Creditors — corporation or married women may be, 4 one of several may make affidavit, 28 may dispute all transfers of property by debtor which sheriff, could impeach, 72 may insure goods seized if sheriff does not, 74 cannot maintain trespass to debtor's goods after seizure, 74 Attachment- when issued, i origin of, 2 a special remedy, 3 parties subject to act, 3 granted only where sum certain is due, 7, 34 not for unliquidated damages or penalty, 7, 8, 34 except in Division Courts, 29 whether may issue on bill or note on last day of grace, 9 may issue on recognizance, 9 may issue though creditor holds collateral security, 9 may issue against one Or more joint debtors. 9 setting aside 12. — See setting aside attachment operates only on debtor's interest in property at time of, 13 nothing can be done on, after return day, 14 unless renewed, 68 maybe issued through defendant held to bail for same cause, 41 affidavits, 14, 17 order for, 17 INDEX. 147 Attachment — Continued. form of order for, 125 form of writ, 120 Writ of.— S^^ Writ Levy on Sunday void, 45 must be made by sheriff forthwith, 69 if effected by unlawful or fraudulent means, void, 69 does not stop right of stoppage in transitu, 79 Not warranted : — if appears to court on motion that defendant not absconding debtor at issue of writ, defendant entitled to costs of defence, 98 and plaintiff only entitled to execution for excess, 98 if claim less than costs defendant may issue execution, 98 application must be made to court, not judge, 99 before execution issues, 99 defendant must make out clear case, 99 party and party costs only recoverable, 99 whether plaintiff entitled to any costs if motion successful, 99 defendant entitled to costs of application, 99 Of debts by notice . — after notice in writing of writ debts of absconding debtor not to be paid him, 102 nor property delivered to him, by custodians, 102 nor payment or delivery to be made to any one for his use, 102 such payment or delivery fraudulent, 102, 103 notice to be given by sheriff or by or for plaintiff, 102, 104 plaintiff may recover after judgment, 102 if other property insufficient, 103 whether notice not in writing good, 103 form of notice, 136 payment or delivery to sheriff not contemplated, 103 if other property sufficient to satisfy writs, debtors or custodians restored to original rights, 104 if plaintiff fails in action, debt or property relieved, 104 claim must be in form of debt or demand, not unliquidated claim, 104 after such notice debtors or custodians entitled to stay of pro- ceedings in action brought by defendant or subse- quent assignees, 105 application for stay to be on affidavit, 105 proceedings stayed until sufficiency of other property ascer- tained, 105 Order m discretion of Court or Judge, 105 may direct issue to try disputed questions of fact, 105 form of issue, 106 Of debts by sheriff: — may be allowed, if other property insufficient, 107 by sheriff having execution, 107 rule or order of court or judge to be made, 107 defences available against absconding debtor may b* set^i^p, 107, 109, 110 recovery operates as discharge, 106, in 148 INDEX. Attachment — Continued. moneys recovered part of debtor's assets, 107 should clearly appear that other property insufficient, 108 application ex parte, 108 material for, 108 allowed as to such claims as reasonably sufficient to satisfy executions, 109 contents of order, 109 whether attaching creditors may alone participate, 109 or whether all execution creditors entitled, 109 suggestions to parties applying, 109 sheriff not bound to sue unless indemnified, 109 has only debtor's rights, no effect of garnishment by other parties, no of mechanic's lien, no on suggestion of sheriff's death, execution to issue in name of his personal representatives, in, 114 debtor, on return to province, may sue for notes or debts not attached, in requisites of statement of claim by sheriff, 112 sheriff not bound to sue till plaintiff gives his bond with two sureties, 113 in double the amount of value of debt or property, 113 indemnifying against costs, losses and expenses, 113 unreasonable refusal by sheriff makes him liable, 113 and court could compel him to sue, 113 condition of. Act to be strictly followed, 113 action not to abate on sheriffs death. 114 successor to carry on, 114 suggestion to be entered, 114 no order necessary, 114 form of affidavit, 136 form of order, 137 form of bond, 138 B Bail- proceedings to hold to, analogous to attachment, 27, 28 Special : — application to set aside writ must precede, 12 amount of, need not be mentioned in order for writ, 12 objection to form of affidavit must be made before time for putting in expires, 24 order for writ should limit time to be put in, 32 if put in, order to proceed unnecessary, 47 INDEX. 149 Bail — Continued, court may allow, to be put in any time t ,fore execution exe- cuted, 55 if delay accounted for and defence on merits disclosed, 55 must be put in before defendant can plead, 51, 56 on putting in, defendant's property and proceeds of perishable property to be restored, 59, 64, 65 to be perfected as on capias for amount sworn to, 57 after put in, action to proceed as in capias cases, 57 must consist of two persons, 58 notice of more than two irregular, 58, 60 procedure after, under Judicature Act, 58 to be put in within time limited for order or extended time, 59 Who may be : — not practising solicitor, 59 nor person indemnified by defendant's solicitor, 59 nor turnkey or keeper of gaol, or sheriff's oflScer, 59 must be freeholders or householders, 59 if householder, house must be in jurisdiction, 59 Before whom put in : — court or judge or commissioner to take bail, or clerk of county court, 60 Acknowledgment, form of, 129 Recognizance of : — \ condition of, 57 must state day of month and county in which put in, 60 also names of parties and sums sworn to, 60 may be amended with consent of bail, 60 form of, 128 Affidavit of justification : — may accompany notice of bail, 60 then, if plaintiff excepts and bail allowed, he must pay costs, 60 requirements of, 61 addition and true place of abode to be given, 61 defect in, does not prevent justification, but deprives defendant of costs, 61 copy of annexed to notice should be marked " copy," 62 if none, bail must justify in court, 64 form of, 129 Affidavit of due taking : — to be made by credible person, 61 any one compos mentis is credible, 61 cannot be made by commissioner taking bail, 61 copy of, may be served with notice of bail, 63 form of, 130 Filing of : — Affidavits and recognizances to be filed in office where proceed- ings taken, 61, 62 when filed, of same effect as if taken in open court, 62 150 INDEX. Bail — Continued, Notice of: — must state names, residences, and additions of bail may be accompanied by affidavits of justification and due: taking, 60, 63 form of, 130 Exception to : — plaintiff may except, on giving one day's notice, 62 if no exception within time limited, perfected, 62, 64 how made, 63 notice to be given to defendant's attorney or agent, 63 form of notice, 63 if entry or notice of, omitted, incomplete, 63 omission waived by notice of justification, 63 Notice of justification : — sufficient, if given two days before justification, 62, 63 time and place to be mentioned in, 63 in High Court cases at Judges' Chambers, Toronto, 63 in county court, before judge, 63 doubtful if local judges may act, 63 proceedings on justification, 64 onus on plaintiff of establishing insufficiency, 64 if bail allowed, order of allowance granted,' 64 Changing bail : — cannot be changed without leave of court or judge, 64 Liability of: — liable in sum sworn to, and costs, not exceeding amount of recognizance, 64 Bill of Exchange — whether attachment may issue on last day of grace, 9 if proceedings taken on must appear, is overdue, 21 and unpaid, 22 intermediate endorsements need not be set out in affidavit, 23 in action against drawer, affidavit should show presentment and! notice of dishonour, 23 if not attached, debtor may sue on after his return, 72 Board of Trade — membership on, not attachable, 81 Bond — to indemnify sheriff against doing duty, void, 68 to be deposited with sheriff before sale of perishable goods, 84, to be by plaintiff and two freeholders to defendant, 84 freeholders to be approved by sheriff, 84, 88 in double appraised value, 84 condition of, 84 INDEX. 151 Bond — Continued. for protection of defendant, 87 if not given, sheriff to return goods, 88 sherift bound to exercise care in approving, 88 must substantially comply with statute, 88 appraisement must be made before given, to ascertain penalty, 88 if plaintiff, in four days after notice, does not give, sheriff to restore perishable goods, 90 and relieved from liability to plaintiff, 90 when four days expire on Sunday, whether may be put in on Monday, 91 cannot be put in after expiry of four lays, 91 if sheriff colludes with defendant and refuses sufl&cient, plaintiff not prejudiced, gi form of, 133 On attachment of debts ; — to be given to sheriff indemnifying against losses, costs and expenses, 113 condition of, 113 condition to be strictly followed, 113 . to be given sheriff in name of office, 113 form of, 138 Books of Account — if attached, to be included in inventory, 67 Carrier : — Property of, attachable, even if used for Her Majesty's mails, 81 Changing Bail — consent of court or judge needed for, 64 Collateral Security — attachment may issue though creditor holds, 9 Concealment — of debtor's person not sufficient ground for attachment, lo 152 INDEX. Concurrent VVrit- plaintiff may issue one or more within six months, 40 to be tested on same day as original, 40 to be marked " concurrent," 40 may be directed to any sheriff, 40 to be in aid of original writ, 40 need not be in duplicate or served, 40 issued on praecipe, 41 expires vvith original, 41 to be directed to different sheriff, 41 Corporations — cannot be absconding debtors, 4 entitled to benefit of Act, 4 president or principal officer of, may make affidavit, 28 rights and shares in, attachable, 67, 76 whether shares in foreign, attachable, 76 Costs — suit may be brought in highest court for small claim at peril of losing, 94 of first attachment have priority, 100, 141 Of assessment of damages : — not allowed if reference should have been taken in lieu of, 52. Of sheriff:— plaintiff to pay in first instance after taxation, 95 may be recovered by sheriff after taxation by action, 95 against whom, qticere, 96 to be taxed to party paying as disbursements in suit, 95 Of defence : — defendant entitled to, if appears to court on motion he was not absconding debtor at issue of writ, 98 motion to be made before execution issues, 98 may be set off in such case against claim, 98 as between party and party only allowed, 99 express statutory enactment necessary to enable taxation as between solicitor and client, 99 if motion successful whether plaintiff entitled to any costs, 99 defendant entitled to costs of application, 99 execution may issue for excess either way, 98 County Court — Judge of, may ordar writ in High Court cases, i8 attachments in cases within jurisdiction of, may be issued, 33 what cases are v/ithin jurisdiction of, 33, 34 T INDEX. 158 County Court — Continued. judge of, may make order to proceed in High Court cases, 45 whether judge of, can act on justification of bail in High Court cases, 63 Credible Persoxs- affidavit of two as to departure and intent required, 17, any one who is compos mentis is credible, 32 18, 32 Credits — if debtor departs leaving, may be attached, Creditors — corporations are within Act, 4 so are married women, 4 debt must be actually due to 7, 8, 9 Crown is, on recognizance, 9 one of several may make affidavit, 28 must prove claim before judgment, 50. — See yadgment. to file affidavit before execution issues, 50. — See Execution. Liability of: — for improper issue of attachment malice and want of probable cause must be charged, 43 unnecessary to allege termination in plaintiffs favor, 43 if attachment set aside trespass will lie against, 43 onus of proving malice, &c., on plaintiff, 43 not responsible for seizure of stranger's goods unless sheriff specially instructed to seize them, 77 not responsible for solicitor's instructions without express authority, 77 one may contest anothers claim by leave of Judge, 49 Crown — may proceed on recognizance by attachment, 9 affidavit in such case may be made by County Attorney, 9, 12 CusTODiA Legis — goods in, not attachable, 74, 81 D Damages — unliquidated not ground of attachment, 7, 8 must be proven before judgment by assessment or reference, 50 164 INDEX. Damages — Continued. Assessment of: — defendant may be heard in mitigation of, though special bail not in, 51 interlocutory judgment should be signed before assessment of, 51. 52 costs of, not allowed if reference proper mode, 52 after interlocutory judgment amount of, only in question, 52 Death of Sheriff — pending suit for debts, action to be revived by suggestion in name of successor, 114 if after judgment execution to issue in name of personal repre- sentatives, III Debt — must be in sum certain and overdue, 7, 8, 9, 21 should be such as subject of special indorsement or garnish- ment, 8 must be proved before judgment by assessment or reference, 50 must be sworn to and all c "edits given before execution, 50 form of affidavit, 127 Definition — absconding debtor, i, 10 Defence on Merits — must be disclosed on application for leave to defend, 55, 56 ordinary affidavit of, insufficient, 56 any defence legal or equitable sufficient, 56 need not be stated with minute particularity, 56 form of affidavit, 127 Defendant- cannot plead until special bail put in, 51 but may be heard at trial in mitigation of damages, 51 allowed to plead on putting in special bail, 59 goods restored to, on putting in special bail, 59 See Absconding Debtor. Defraud — debtor must part with intent to, i, 10 Demurrer — no objection to affidavit for attachment allowed on, 28 INDEX. 165 Departure — debtor liable to attachment on, when, i must be from Ontario, i, 31 with intent to defraud, i, 10 must have actually left Ontario, 10 if to another Province sufficient, 10, 31 temporary, insufficient, 10, 11 with intent to avoid criminal process sufficient, 11 originally lawful may be deemed fraudulent if absence pro- tracted, II creditor and two credible witnesses must swear to, 20, 31 to what place, should be shewn if possible, 31 Deputy of Sheriff — should be authorized by written warrant, 68 should make known authority if required, 63 Disbursements — in keeping goods, sheriff allowed necessary, 67 Distribution of Proceeds — ratable among several attaching creditors, 115 if they sue to judgment and execution, 1x5 court or judge may delay, to allow judgment to be obtained, 115 now governed by 46 Vic. c. 6, s. 4, s-s. 3, 115 Division Court judgment creditor entitled to share in, 93, 94, 116 on producing certificate of judgment from clerk, ib if proceeds insufficient to satisfy all writs no one allowed to share, unless their attachments issued six months after first attachment, 117 repealed by 46 Vic. c. 6, 117 Division Courts- given jurisdiction for small claims by 13 & 14 Vic, 2 have jurisdiction to 8100 for debt or damages on any contract, 29 increased jurisdiction of, extends to attachment proceedings, 29 provisions of, 46 Vic. c. 6, s. 4, not applicable to, 86 Attachment from : — freeholders making inventory on attachments in, to be sworn, 83 bailiff' of, authorized to administer oath to appraisers, 84 superseded by attachment in sheriff's hands, 92 sheriff^ to demand and take property and proceeds of perishable property from officer having, 92, 94 bailiff, etc., to deliver up forthwith after demand and notice of attachment, 92 on penalty of forfeiting double value and costs, 92 creditors on, to proceed to judgment and serve memo, of amount, 93, 94 156 INDEX. Division Courts — Continued. memo, to be under hand of clerk, 93, 94 creditorson, to beentitledrateably with other attaching creditors, 93. 116 sheriff's demand need not be in writing, 94 penalty for refusal recoverable up to |6o in Division Courts, 94 creditors should have executions in bailiff's hands, 116 form of clerk's certificate of judgment, 135 on distribution, 139 Execution from : — not superseded by attachment in sheriff 's hands, 03 Domicile — not the test of residence, 5 See Resident. Dwelling-house — seizure by breaking into void, 36, 71 if outer doors of, entered lawfully, inner doors may be broken, yr Effects- E of absconding debtor may be attached when, i Evipence- party mixing goods with debtors has burden of proof to dis- tinguish, 70 EXi:cuT0Rr — not liable to attachment unless personally liable, 4 Execution — affidavit of sum "justly due " to be filed before issue, 50 may be made by plaintiff, his attorney or agent, 50 to issue for amount sworn to and costs, or of judgment, which- ever smaller, 50 credit to be given for all payments and sets off, 50 if maliciously issued for greater sum than due, actionable, 54 otherwise, if consistent with judgment in force, 54 all writs of, placed in hands of sheriff prior to distribution rank rateably, 100, 140, 141 subject to priority for costs of first attachment, 100, 140, 141 whether six months' limit (s. 30) repealed, 100 INDEX. 157 Factor — property consigned to, cannot be attached, 80 Foreigner — Forms — carrying on business in Ontario may be a resident within the Act, 5 not liable if here for temporary purpose, 6 statutory sufficient to follow, 35 exception to bail, 63 notice of exception to bail, 63 writ, 120 affidavit for attachment, 122 another form, 122 affidax f two other credible persons, 124 order 1 attachment, 124 affidavit for leave to proceed mder sec. 8, 125 order for leave to proceexl, 126 certificate of assess n;.: r of damages on reference, 127 affidavit proving r.,s • 1 justly due, 127 affidavit for leave lo Jefend, 127 order allowing defendant to defend, 128 recognizance of bail, 128 acknowledgment of bail, 129 aiTidavit of ju'stification of bail, 129 affidavit of du? taking of bail, 130 • notice of bail, 130 invf^utory, 131 sheriff's return, 131 appraiser's oath, 132 ppjir.'jisement, 132 notice of seizure of perisliable pro^ ""ty, 132 bond on sale of perishable property, 133 affidavit for order for sale under 46 Vic. c. 6, 134 order for sale thereon, 135 certificate of Division c;ourt clerk of judgment recovered on superseded attachment, 135 notice to defendant's debtors to hold debts or property, 136 affidavit for order for sheriff to sue debtors, 136 order thereon, 137 bond of indemnity to sheriff, 138 " Forthwith," meaning of, 72, 94 Fraudulent Judgment— attacking, ici M^ INDEX. Freeholder- bail must be a, or householder, 59 sherift to get assistance of two, to make inventory, 67, 82 inventory to be signed by two, 67 need not be first sworn in cases where sheriff holds attachment, otherwise in Division Courts, 83 no appraisement by, necessary except as to perishable goods, 83 t".'0, to be on bond to sheriff before sale of perishable goods, 84, 88 Garnishment — Gaol — Grass — what debts subject of, 8 both legal and equitable debts, 8 See Attachment of Debts. keeper or turnkey of, cannot be bail, 59 growing not attachable, 80 H Heirs — not liable to attfcchment unless personally liable, 4 History of Attachment, 2 Householder — may be bail if house in jurisdiction, 59 Husband and Wife — See Married Women. wife's property •not attachable for husband's debt, 80 but is for her own, 80 ' INDEX. 159 Indebted — defendant must be, in sum actually due, 7, 21 in sum certain and not unliquidated d-^mapes or penalty, 7, 8 holding collateral security does not impair right to attachment, 9 afiSdavits must shew cause of action with certainty, 20 Inhabitant, 5 — See Resident. Insurance — sheriff has special property in goods seized and may insure, 73 insuring properly is tiustee for attaching creditor or owner of goods for amount recovered, 73 whether sheriff liable for Irss by fire if refuses tender of premium to insure, 73, 74 attaching creditcrs may insure if sheriff does not, 74 Intent to Defr..ud — a prerequisite of writ, i, 10, 12 may be gathered from circumstances, 10 sufficient if to djfraud plaintiff only, 11, 21 lea vingw'thout making p-ovision for pressing claims sufficient, 11 if absence though originally lawful be protracted, presumed, 11 judged by defendant's acts, 11 impeding 01 delaying creditors by absence sufficient, ir tried by affidavit in Chambers, 12 where several claims must be shewn as to all, 23 Interlocutory Judgment — should be signed before damages ascertained, 51, 52 Interest — when aliovvfed — in action foi afhdavit should shew express contract or that it is recoverable at law, 23 need not shew when, began lo run, 23 right to, must be proved as in ordinary defended action, 51, 53 method of calculating, where payments extend over length of time, 53 where payable otherwise than by written contract, allowed from demand, 53 when recoverable, 53 Interpleader — order for, may be obtained by sheriff in cas;:? goods claimed, 72 issue s!>ould be nether goods the claimants at seizure as against attaching creditor, 105, 106 c.uthoritiea re interpleader collected, 106 160 INDEX. Inventory of Debtor's Property — sheriff to make, with assistance of freeholders immediately, 67, 82 to be returned signed by sheriu .'nd freeholders with writ, 67, 82 should describe articles sufficient for identity, 71, 83 freeholders need not be sworn, nor need appraisement be made, 83 except in case of perishable property, 83 sheriff should keep copies of inventory and appraisement, 83 further writ not to necessitate now inventory, 97 c .-.ts of only one, allowed to sheriff, 97 form of, 131 Joint Debtors — one or more, may be proceeded against by attachment, 9, 28 if affidavit insufficient as to one, no attachment against him, 27 interest of one, may he seized though others rights impaired, 80 but their possession cannot be interfered with, 80 JUDGE- may order writ of attachment when, i, 18 justified in making order if necessary facts sworn to, 27 not to decide whether such facts are true, 27 Local : — whether, can act on justification of bail in court, 63 Judgment — plaintiff must prove debt or damages by jury or reference before, 50 interlocutory, should be signed before damages ascertained, 51, 52 if entered for more than amount due roll should be amended, 54 fraudulent, cases as to attacking, loi JrjDiCATURE Act — requires attachment to be issued according to old practice, 39 Jurisdiction — of Superior Court, i of County Court'i, 33, 34 of Division Courts, 29 if court without, to sheriffs knowledge he is liable for acting on process, j6 INDEX. 161 Justification — Sec Bail Keeper of Gaol — cannot be bail, 59 Law of Attaciuient — history of, 2 Leave to Defend — may be granted before or after judgment and before execution executed, 55 before granted, delay must be acjounted for and defence on merits disclosed, 55 application for, must be made before sheriff's return money made, 55 where no irreparable wrong done plaintiff, lapse of time no bar, ordinary affidavit of merits insufficient, 56 merits must be " disclosed,'' 56 any defence legal or equitable sufficient for, 56 defence need not be set out with minute particulaiity, 56 if granted, defendant must first put in special bail, 56 if refused, defendant may still (juestion amount cf damages, 56 form of affidavit for, 127 form of order, 12S • Leave to Proceed — affidavit for, 125 Levy m.iy be made any time before writ actually returned or return day, 14, 68 cannot be made after return day without renewal of writ, 66 on goods in possession of stranger not justified by mere pro- duction of writ, 36, 69 made on Sunday, void, 4C, 69 what may be taken on, 67 duties and liabilities of sheriff on, 67 — Stv Sheriff effected by unlawful or fraudulent means, void, 6g if process abused in making, void, 69 no lien on property until, 72 must be made forthwith, 67, 72 S.A.D. 11 •Ji'HfU'l^l'PV'T'W"" ""■' 162 INDEX. Liability of Bail- liable in sum sworn to and costs not exceeding amounts of recognizance, 64 Liquors — Mails- whether attachable if sale of, forbidden by law, 77, 78 M effects used in carrying, not exempt from seizure. Si Malicious Issue of Attachment, 43. See Creditor, liability of execution, 54. 6)ty Extcution Manufacture — goods in course of, not attachable it would be useless if process arrested, 80 hides being tanned, dough, materials in process of fusion in glass factory, 80 Married Women — if liable to judgment subject to attachment, 4, 80 entitled to remedy under Act, 80 property of, not liable for husband's debt, 80 Measure of Damages — in action against sheriff for neglect, extent of injury proper, 75 Mechanics' Liens — proceedings taken under, may defeat right of attachment of debts, no Money — collected on execution by public officer not attachable, 81 may be garnishable. lb Mortgage — may be seized as a security for money, 14 interest of mortgagee in land covered by, not attachable, 14 INDEX. 163 N Notice of Bail — See Bail Justification — Sec Bail o Origin of Attachment, 2 Order for Writ, 18 need not specify amount of special bail, 12 while in force parties cannot object to sufficiency of affidavits in collateral proceedings, 18 if variance between, and affidavit, would probably be amended, 23 granted on affidavits complying with Act, 32 should provide for time within which bail to be put in, 32 form of, 124 To proceed : — court or judge may make, after personal service and other cases, 44 . county court judge may make, in superior court cases, 45 if proved that writ came to defendant's knowledge, strong ground for, 46 not necessary where special bail put in, 47 should not be granted at same time as order for attachment, 47 what should be shewn on application for, Stephens v. Dennie, 3 U. C. L. J. 69, 48 not granted where nothing attached, 48 judge may allow another creditor to contest plaintiff's claim, 49 or impose other conditions, 44, 49 form of affidavit for, 125 order, 126 For sale of goods — Sec Sale OVVNER- debtor must be of real or personal property, i #: Parties — Subject to Act :— who are, 13 person departing with intent to defraud leaving property, i 164 INDEX. Parties — Couthiucd. , corporation not, 4 executors, trustees, heirs, etc., not unless personally liable, 4 married woman is, if liable to judgment, 4 Entitled to attachment : — corporations, 4 married women, 4 Paymen'^s — credit to be given debtor for, before execution issues, 50, 53 Penalty- attachment not granted to recover, 8 Perishable Goods- net proceeds of, to be restored on special bail being put in, 59, 64. 78 sheriff cannot deduct costs and expenses from proceeds of, 65 appraisement must be made of, 83, 84 uhat are, 84, 85 to be appraised and valued on oath by two competent persons, 84 plaintiff to deposit bond to defendant before sale, 84 sheriff shall sell at public auction, 84, 89 six clear dr ys' notice of sale to be given, 85, 8g except goods of nature not to allow delay, 85 sheriff to hold gross proceeds o'' same as other property, 85, 89 sheriff should exercise reasonable judgment in deciding what are, 85 whether sheriff can administer oath to freeholders, 87 appraisers must be sworn before appraisement, 87 oath should be entitled in court and cause, 87 form of, 132 sheriff selling without appraisement liable to action, 87 sale without appraiseinent not void, 87 both appraisers must be sworn, 87 and must be reasonably competent, 87 sheriff not concluded by valuation, but onus on him to shew- not fair, 87 whether appraisers must be resident of particular county, 88 whether plaintiff may be appraiser, 88 appraisement must be made before bond given, 88 sheriff to forthwith give notice to plaintiff or his solicitor of seizure of, go form of notice, 132 need not be in writing, 90 plaintiff has four days to put in bond, 90 whether can be put in on Monday if Sunday last day, 90 form of bond, 133 Private Papers — not attachable, 88 INDEX. 165 Priority of Executions- of those received after attachment over attachment, abohshed, loo, 140 all executions received before distribution rank rateably, 100, 140, 141 subject to priority for costs of first attachment, 141 Process — departure to avoid service of, ground of attachment, 17, 31 any writ issued with a view of obtaining judgment for a creditor's claim, 32 Promissory Note- whether attach mewt may issue on last day of grace, 9 in action on, plaintiff must shew in affidavit he is holder, 22 dates of, need not be given in affidavit, 22 should be shewn, is due and unpaid, 21, 22 if payable by instalments, should shew what instalments due, 22 intermediate endorsements need not be set out, 23 where several notes, amount of each should appear, 23 if not attached may be sued on by debtor after his return, 72, III Proof — Of damages : — must be made before judgment and execution, 50 before jury or on reference, 51, 52 formerly required as if general issue had been pleaded, 52 now only amount in question cfter interlocutory judgment signed, 52 Of Ownership : — onus of distinguishing property mixed with other, on person causing mixture, 70 PrOPRRTV — if debtor departs leaving, it may be attached, i may be either real or personal, i all not exempt from seizure, liable, i to be seized and taken under attachment, i for satisfying debts, i of foreigner, when subject to attachment, 5 if sold before departure or held in trust, no attachment to issue, 13. 7Q plaintiff in such case only to bring ordinary action, 49 equitable estate in land may be attached, 13 need not be such as is available under execution, 13 attachment operates on debtor's interest in, at time of levy, 13 acquired after writ returned, not attachable, 14 166 INDEX. Property— Continued. interest in real, of mortsagee not attachable, 14 sheriff to seize and take possession of all, 16, 67 See Seizure, Sheriff" goods not bound till seizure made, 16 to be restored on special bail being put in, 59, 64, 65, 66 inventory of personal, to be made and returned with writ, 6j includes shares in associations and corporations, 67 if seized in tenement of third person, cannot remain there without consent, 71 if not attached, owner may sell, 73 What attachable : — all property seizable under execution, 79 money in specie, if defendant's personal security not violated. 79 bank notes and treasury notes, 79' no greater right acquired than debtor had, 79 chattel pawned not attachable when pawner defendant, 79 if freight due on goods, they cannot be attached till freight paid, 79 if sheriff pays freight, entitled to carrier's rights, 79 when right of property passes, right of attachment against transferer gone, 79 if no title passes till condition performed, cannot be attached before performance, 79 consigned to factor, cannot be attached, 80 if lent to any person, cannot be attached for his debt, 80 vested remainder in personal, not attachable during life in- terest, 80 wife's cannot be attached for husband's debt, So but may be for her own, 80 interest of one of several joint owners may be attached, 80 but possession of other joint-owners must not be im- paired, 80 growing grass not attachable, 80 goods in course of manufacture not attachable in certain cases, 80 membership on Board of Trade not attachable, 81 in cnstodia Icgis not attachable, 81 goods in actual use not, 81 effects used for carrying mails are, 81 ' Where and how attached : — may be attached wherever found, 81 must be reduced into possession, 81 constructive possession sufficient of large and unmanageable articles, 82 if removal would result in great waste and expense, keeping control of, sufficient, 82 if of such nature that will not be productive of benefit not attachable, 88 as private, papers, 88 INDEX. 167 Propertv— Continued. In hands, of third parties : — after notice of writ custodians of, not to deliver to debtor, 102 or any one for his use, 102 such delivery fraudulent, 102, 103 notice to be given by sheriff or by or for plaintiff, 102, 104 plaintiff may recover after judgment, 102 if other property insufficient, 103 whether notice not in writing good, 103 form of notice, 136 delivery to sheriff not contemplated, 103 if other property sufficient custodians restored to original rights, 104 if plaintiff fails property relieved, 104 custodians entitled to stay of proceedings in actions brought by debtor or subsequent assignees, 105 application for stay to be on affidavit, 105 stay ordered in discretion till sufficiency of other property ascertained, 105 issue may be directed to try disputed questions of fact, 105 form of issue, 106 mere production of writ will not justify seizure by sheriff, 36, 69 PUKCHASERS- sheriff takes subject to rights of, acquired before execution or attachment, no unless fraud or collusion shewn, ni R Real Estate- equitable interest in, may be attached, 13 interest of debtor in at time of attachment bound by it, 13 need not to be such as is available in execution, 13 sheriff should enter into and keep possession of, 16 acquired after return of writ not attachable, 14 interest of mortgagee in, not attachable, 14 possession to be re-delivered on perfecting special bail, bu Recognizance — attachment may issue on, 9 Of special bail : — condition of, 57 must state day, month and county in which put in, 60 and names and sum sworn to, 60 may be amended with consent of bail, 60 -vV .n^ ^ .^^^< ^ A ^ IMAGE EVALUATION TEST TARGET (MT-3) // ..V 1.0 I.I I 1.25 Li|28 |Z5 ■ii Uii 12.2 L£ 12.0 lU HUI -^ S^^ ^V^^ ^ ^J V I%otographic Scm)es CarporatiQn ^ ^ \\ C^ n WBT MAIN STRHT «VIUTM,N.Y. MSM (7I*)I72-4S03 '^ HMHHMMili / 168 INDEX. Reference — plaintiiTmay have damages ascertained by, 51 nt»rloc".tory judgment should be first signed, 51, 52 ■:n>acate of assessment, 127 Remainder — vest' ' in ,>ersonal property not attachable during life estate, 80 Renewal of Writ — when last day Sunday may be renewed next day, 38 if writ expires before service, goods can no longer be detained, 38 judge cannot extend time for, 38 may be renewed from time to time during currency of writ, 38 Representatives — not liable to attachment unless personally liable, 4 Resident — absconding debtor must be of Ontario, 4 who is a, 5, 6, 7 synonymous with inhabitant, 5 definition of, 5 foreigner may be construed as a, 5 Scotchman deparfing for home two years before debt due not, 5 word should be liberally construed, 6 person is of place where to be found daily, 6 Act extends to residents only, i, 7 affidavits must shew defendant a, 20 "lately doing business" insufficient, 20 Restoration of Property — sheriff to restore on special bail being put in, 59, 64, 63 unless other ground of detainer, 59, 65 as writ of execution in sheriff's hands, 65 net proceeds of perishable goods to bs paid defendant, 59, 64, 65 no costs to be deducted from proceeds except those relating to the perishable goods, 65 real estate to be delivered up, 66 remedy for not restoring, 66 on setting aside attachment, 75 Return of Writ- property acquired after cannot be attached, 14. 68 not necessary to state in, that property is defendant's, 14 to be accompanied by inventory, 67 INDEX. 169 Return of Writ — Continued. authority of sheriff continues until, 68 sheriff bound by, 71 should shew what has been done fully, 71 prima facie correct if made in proper time, 71, court or judge may allow amsnJmint of, 72 form of, 131 72 Rights and shares in association or corporation attachable, 67 Sale — by debtor before attachment right of attachment gone if property passed, 13, 79, no unless made by collusion or fraud, in if made after attachment issued of goods in possession of third party, he is not to deliver after notice of writ, 105 and may obtain stay of proceedings, 105 of perishable goods — See Perishable Goods Under 46 Vic: — court or judge may order, after writ one month in sherifi^s hands, 86, 140 except chattels real, 86, 140 when order will be made, 86, 140 what to be shewn on application for order for, 86 day on which writ received excluded in month, 86 cheques, bills, notes, bonds, &c. not subject to Act. 86 any creditor who has writ of attachment may apply for order, 86 form of affidavit for, 134 form of order for, 135 Security — attachment may issue though creditor holds, 9 See Bond. Seizure — sheriff to make, before return day or writ actually returned, 14 16, 68 after, sheriff may maintain action for injury to goods, 16 goods not bound till after, 16 made on Sunday, void, 46, 69 what may be taken on. 67 duties and liabilities of sheriff on, 67 — See Sheriff effected by unlawful or fraudulent means, void, 69 if process abused in making, void, 6g 170 INDEX. Seizure — Continued. no lien on property until, 72 must be made forthwith, 67, 72 goods need not be touched to constitute, 82 what constitutes a, 82 if abandoned attachment lost, 71, 82 of large and unmanageable articles, constructive possession, sufficient, 82 more than bare seizure required by Act, 96 inventory on — Sec Inventory Servant— Service- of plaintiff may make affidavit for attachment, 17 fact of service should appear in distinct paragraph, 29 duplicate original writ to be issued for, 39 procedure after, 44 judge may order substitutional, 44 after diligent inquiry, 45 what is diligent inquiry, 46 Service — application, where to be made in Sup)erior Court cases. 45 on one partner not sufficient for all, 53 void if made on Sunday, 44 if writ comes to defendant's possession good, 46 if comes to knowledge strong ground for order to proceed, 46 judge may require further attempt at, 46 what is good. 47 by posting up in lieu of, 47 by leaving at last place of residence, 47 by mailing to supposed place of departure for, 48 by posting in clerk's office and leaving at last place of residence, 48 substitutional, has same effect as personal, 48 Settinu Aside Attachment — question of intent may be tried on application for, 12 application must precede special bail and defence on msrits, 12 must be made promptly, 12 may be made to a court or judge, 41 delay in moving bar to, 42 all objections should be made on, 42 defendant should make out grounds clearly on, 42 cannot be made by stranger, 43 another creditor in case of fraud or non-compliance with Act may, 43 defects in plaintiffs affidavits may be supplied by those used by defendant, 12, 21 INDEX. 171 Setting Aside Attachment — Conti.tued. although defendant has been held to bail for same demand attachment good, 41 if plaintiff does not proceed as required by practice proceedings set aside, 42 judge may allow to stand as ordinary process, 42 and order delivery up of goods trespass will lie for improper issue after, 43 property should be restored to debtor on, 75 Set Off — credit to be given debtor for any, before execution issues, 50, 53 Shares — in associp' on or corporation attachable, 67, 76 otherwise in foreign corporation, 76 Sheriff — authority of, continues till return day, 14, 68 return of — See Return of Writ may levy till v;rit actually returned or till return day, 14, 68 cannot levy after return day unless writ renewed, 68 to make proper seizure of debtor's property, 16, 67, 68 cannot contract for sale before seizure, 16 may maintain action for injury to goods after seizure, 16, 74 may proceed agairst party in possession of property for delivery, 16 should enter into and keep possession of real estate, 16, 67 not justified in omitting to execute, though voidable, 35, 68 has nothing to do with merits, 35, 36, 68 liable if writ void for want of jurisdiction to his knowledge, 36, 68 protected if writ in legal form and property seized in custody of debtor, 35, 36, 68 mere production of writ by, will not justify seizure of goods in possession of stranger, 36, 69 deputy, or bailiff has powers of, 36, 68 warrant to deputy, or bailiff should be in writing, 68 should be shewn if demanded, 36, 68 may break into warehouse or store if admittance refused him, 36. 71 not into dwelling house, 36, 71 but having gained admission to house may break inner doors, 71 to receive a duplicate original writ for service, 39 to act on concurrent writ, 40. 41 a trespasser if attachment made on Sunday, 46, 69 person employed by, cannot be bail, 59 to restore property or net proceeds of perishable goods on special bail being put in, 59, 64, 65 unless some other cause for detainer, 59, 65 172 INDEX. Sheriff — Continued. as writ of execution in his hands, 65 not to deduct from proceeds any costs except those in respect of perishable goods, 65 whether, bound to take goods back to place of seizure, 65, 91 costs of restoration to be deducted from sum advanced by plaintiff under section 17, 65 whether may detain book debts or thing? ot seizable under execution after bail in, 65 to deliver possession of real estate, 66 liable to action and summary order for neglect to restore, 66 to attach all property including shares in associations or corpora- tions, 67, 73 allowed necessary lisbursements for keeping property, 67 to get assistance of two substantial freeholders of county and make inventory, 67 to return inventory signed by self and freeholders with writ, 67 duties and liabilities of, 68, 73, 78 to ascertain if writ in legal form and issued by proper officer, 68 cannot act under void writ, 68 bond to indemnify, against doing duty void, 68, 69 must attach sufficient for plaintiff's claim if, can be found other- wise liable for deficiency, 69 must execute attachment forthwith, 69 if plaintiff damaged by delay of, liable, 69 attachment by unlawful means, void, 69 must act in conformity with law, or no lien created, 69 liabL for abuse of process, 69 trespasser, if levy made on property not liable, 69, 77 can never be trespasser for execution of writ in lawful manner, 69 sureties of, liable for attachment of stranger's goods, 70 but qucere if liable in Ontario — See Corrigenda entitled to have goods of strangers mixed with debtors, demanded and identified, 70 selling strangers goods after notice of claim,liable for conversion, 70 cannot attach goods wilfully mixed by debtor beyond identity with other property, 70 when, may attach whole of intermixed goods for debt of innocent party, 70, 71 may enter store of third party to seize, secure and make inventory of goods, 71 not entitled to keep property there without consent, 71 but must remove goods promptly, 71 abandoning property, all previous rights gone, 71 bound by his return to writ, 71 return of, should shew what he has done under writ, 71 must not use attached property, 71 should describe articles in inventory sufficiently for identity, 71 return of prima facie correct if made in proper time, 71 court or judge may allow, to amend return, 71 return of, cannot be amended without leave, 71 form of return, 131 not liable for not seizing goods he has no notice of, if diligence used, 72 INDEX. 173 Sheriff — ContiuHcd. may obtain interpleader order in case of adverse claims, 72 liable for negligence in losing property, to successful party in action, 73 has special property in goods seized and may insure, 73 holds insurance money as trustee for ittaching creditor or owner of goods, 73 whether responsible for loss by fire, if refuses to insure though premium tendered, 73, 74 a trespasser ab initio if, sells property without amhority, 74 bound to use ordinary diligence in keeping property, 74 may shew that attached property not the debtors if sued for lOSS, 74 or that it was exempt or in custodia legis, 74 cannot protect himself by returning that property attached at risk of plaintiff, 75 cannot contest validity of judgment against debtor, 75 if attach '?d property removed out of bailiwick without consent of, may follow, 75 expense of keeping attached property no excuse for non -pro- duction by, 75 if pioperty delivered to third party at request of plaintiff's attorney, not bound to produce on r ipcution, 75 may shew in mitigation of damages that execution satisfied, 75 demand for property must be made before action against, 75 should restore property to debtor if attachment set aside, 75 but entitled to actual notice of setting aside, 75 large disbursements of, may be disallowed to, 76 liable for neglects of self and officers, 76 responsibility extends to all things done undercolor of writ, 77 even though against sheriff's instructions, 77 if beyond officers authority, 77 whether, may attach liquors, sale of which forbidden by law, 77 7« summary of, duties after attachment, 78 paying freight on goods of defendant subrogated to carriers right of lien, 79 need not continue process of manufacture of debtor's property, 80 need not remove articles when such would result in great waste and expense, 82 should take complete possession of all property, 8r, 82 must not allow property to remain in possession of debtor's family, 82 or constitute them his agents, 82 should keep copies of inventory and appraisement, 83 to sell perishable goods on bond to defendant being deposited, 84 .... should exercise reasonable judgment in determining what are such, 85 or would be liable for loss, 85 selling without appraisement liable to action, 87 goods to be returned if bond not given, 88 Sec Perishable Goods — Bon I ■M^PHpiRPnpw iijii«ifa I .1. J 174 INDEX. Sheriff — Continued. need not attach goods seizure of which would not be productive of benefit, 88 to forthwith give notice to plaintiff or his solicitor of seizure of perishable property, go notice need not to be in writing, go liable so long as, has custody of goods, gi to demand and take property and proceeds of perishable property from Division Court officers having attach- ment, gz may recover double value on refusal, 92 to make enquiry as to property in hands of Division Court officers, 92 Costs of: — includes sums paid for assistance in making inventory and appraisement, 93 plaintiff to pay in first instance after taxation, 95 may be recovered after taxation by action, 95 who to be sued, quaere, 96 to be taxed to party paying disbursements in suit, 95 of one inventory only allowed, 97 attachment of debts — see that title Death of :— if pending attachment of debt, execution to issue in name of personal representatives after suggestion of death, iii, 114 if before judgment, proceedings to be carried on by successor, 114 To restore surplus one month after last execution or distribution, 118 liable to action by debtor on refusal, iig good defence that surplus had become subject to execution, 119 should take receipt for surplus if restored, iig iorm of receipt, i3g Cannot become purchaser of goods sold under writ, iig Small Claims — process extended to, 2 Solicitor- if practising cannot be bail 59 person indemnilied by defendant's, cannot be bail 59 no implied authority to bind client by directing seizure of par- ticular goods, 77 Solicitor and Client — statutory enactment necessary to enable costs to be taxed as between, against third parties, gg INDEX. 175 Special Bail — See Bail Statutes — Stock— 29 Car. II. c 7, s. 6 (Lord's Day Act) 45 2 Wm. IV. c. 5 5 Wm. IV. c. 5 12 Vic. c. 69 13 & 14 Vic. c. 53 C. S. U. C. c. 25 c. 15, S. O. c. I, s. 7, R. 42 s. 7 (County Judges) 45 (absconding debtors) 2, 5, 6, 7, ( do. ) 2, 6, 49 (small claims) 2 (Division Courts) 2 (absconding debtor) 2. 14 s. 8 (County Judges) 45 ss. 13 6c 23 (Interpretation), 3 52 43 s. 19 47 s. 190 50 s. 27 s. 197 66 s. 68 80 125 43 Vice. 46 Vic. c (County Courts) 33 (Division Courts) 29 ^C. L. Procedure, renewal of writ) 37, 38 (C. L. Procedure — reference) 52 2 (Writs of Execution) 15 (absconding debtors) i et scq (Bail) 60 (Married Women) 80 8, s. 4 (Division Courts) 29 . 6, s. 4 (Absconding Debtors) 86, 100, loi, 109, 115, 140, 141 seizure of, 67, 76 in foreign corporation not attachable, 76 Stoppage in Transitu — attachment does not defeat right of, 79 Store- of third person may be entered to execute writ, 71 door of, may be broken if admittance refused, 71 third persons, cannot be used to keep attached property without consent, 71 Stranger- r sheriff not protected against, by merely producing writ, 36 if goods of, seized, may maintain trespass, 69 must demand and identify goods before action in case of con- fusion or mixture with debtor's property, 70 wilfully intermingling his goods beyond distinguishment with- out remedy if seized, 70 to jusiify such seizure sheriff must make due enquiry, 71 Sunday — ,■ I affidavit cannot be made or writ issued on. 23 if last day to renew writ, formerly would then have expired, 37 may now be renewed next day, 38 176 INDEX. SvuDAY— Continued. service of writ on, void, 45 attachment on, void 45, 6g Sureties of Sheriff — liable for trespass of sheriff in seizing goods of stranger, 76 but quare whether so in Ontario — See Corrigenda SURPLUS- restoration of : — if no attachment or execution within a month after last execu- tion or distribution any surplus to be restored, 118 books, vouchers, etc., also to be returned, 118 return to be made to absconding debtor, 118 or persons in whose custody property found, 118 or to authorized agent of debtor, 118 sheriff should take receipt for, 119 form of receipt, 139 subject to lights of other creditors while in sheriff's hands, 119 absconding debtor may sue sheriff for, 119 may be garnished, iig is exigible, 1 19 Teste of Writ — to be dated on day of issue, 37 formerly had to be tested in term, 37 concurrent tested same as original, 40 Time— computation of : — day of issue of writ excluded. 39 Title— if evidences of, attached, to be included in inventory, 67 Trespass — action of, will lid for improper issue of attachment, after writ set aside, 43 sherifif not guilty of, if writ execuf^d lawfully, 69 action of, will lie against sheriff and sureties if goods not liable attached, 69, 70 or if goods of stranger. 69, 70 qucere if sureties liable in Ontario — See Corrigenda INDEX. Trespass -Continued. may be maintained by sheriff against wrong-doer, 74 but not by attaching creditor, 74 Trustees- not subject to attachment unless personally liable, 4 Trust Estate — cannot be attached, 13 Turnkey — cannot be bail, 59 177 Variance — between affidavit and order for writ, amendment of writ, 23 w Waiver — of legal rights by delay, 55 Warehouse — if admittance to, refused sheriff, he may break in, 36 Warrant to Attach — sheriff should issue, in writing to deputy or bailiff, 68 Work and Labor — in action for, affidavit must shew request, 23 Words — "forthwith," 72, 94 "immediately," 72 " resident," 5 S.A.D. i 12 ^m 178 Writ- index. cannot be issued on Sunday, 23 to contain summons to debtor, 35 statutory form sufficient to follow, 35 irregularity in, amended almost as matter of course, 35 if in legal form sl?eriff protected, 35, 68 though voidable, sheriff must proceed on, 35 to be dated when issued, 37 to be in force for six months, 37 day of issue excluded, 37 may be renewed under C. L. P. A., 37 if last day Sunday, writ formerly would then expire, 37 may now be lenewed next day, 38 if expired befon- service, goods no longer to be detained, 38 court cannot extend time for renewal of, 38 may be renewed from time to time during currency, 38 to issue in duplicate, 39 duplicate to be so marked, 39 one for sheriff, other for service, 39 concurrent, may be issued within six months, 40 if improperly issued may stand as ordinary process, goods being delivered up, 42 stranger cannot move to set aside, 43 another creditor may, for fraud or non-compliance with Act, 43 if set aside trespass will lie, 43 malicious issue of, 43 inventory to accompany return of, 67 form of, 120 return to. — See Return of Writ. form of return, 131 See Attachment. CLASSIFIED INDEX OF FORMS. Acknowledgment of Bail, 129 Affidavit — for attachment, 122 of two other credible persons, 124 for leave to proceed, 125 proving claim justly due, 127 for leave to defend, 128 of justification of bail. 130 of appraisers, 132 for order for sale under 46 Vic, 134 for order for sheriff to sue debtors, 136 Appraisement, 132 BOND- on sale of perishable profjerty, 133 of indemnity to sheriff suing debtors, 138 I 'Certificate — of assessments of damages on reference, 127 of Division Court Clerk of judgment recovered on superseded attachment, 135 of Division Court Clerk, of judgment and execution on distribution, 139 Exception to Bail, 63 Inventory, 131 Notice — of exception to bail, '^3 of bail, 130 of seizure of perishable property, 132 to debtors to hold debts or property, 136 uiUMW^MU't ■ w 180 Order — Receipt- classified INDEX OF FOUMS. for attachment, 126 for leave to proceed, 126 for sale under 46 Vic. 135 for sheriff to sue debtors, 137 of debtor to sheriff for surplus, 139 Recognizance — of bail, 128 Return — sheriffs, 131 Writ. 120 \N m W