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took or detained the said goods and chattels, and you the said C. D., or such other person, take notice that in default of your so appearing, the said A. B. may proceed therein to judgment and execution.-Witness, &c. &c. (as in other writs.]
N. B.—This Writ to be served in two months from the date thereof, inclusive, and not afterwards.
No. 2.- (Vide Section 202.)
Replevin Bond. We [names and additions of plaintiff and his sureties), are jointly and severally bound unto
Esquire, Sheriff of
, in the sum of
Idouble the value of goods replevied], lawful money, to be paid to the said
his executors or assigns.-Sealed and dated this
A. D. 18 . The condition of the above is, if the said (plain tij ) do prosecute his suit with effect and without delay against C. D. for taking or detaining his goods and chattelo, to-wit :
, and do return the same, if a return shall be adjudged, and do pay all such damages and costs as may be awarded to the said [defendant), or that he may sustain by reason of the said replevin, or the proceedings thereon, then this obligation to be void, otherwise to be of force. Sealed and delivered )
in presence of
No. 3.- (Vide Section 202.)
Assignment of Replevin Bond by Sheriff. At the request of the within named
, I assign this bond to him.-Sealed and dated this
of : A. D. 18 .
A. B. Sheriff. Witness.
No. 4.- (Vide Section 203.)
Notice of claim to be served on Sheriff. To , Esquire, Sheriff of
I claim an absolute (or special) property in the goods seized by you under writ of replevin issued by [the plaintiff) against me (or, as the case may be).--Dated this day of , A. D. 18 .
No. 5.--(Vide Section 203.)
Writ de Proprietate Probanda. To the Sheriff of County.
You are commanded to summon (seven) lawful men of your hailiwick to enquire whether the goods and chattels, to wit : taken by you under & writ of replevin issued by A. B., Plaintiff, against C. D. defendant, are the goods and chattels of the claimant, or of the said A. B.; and if they determine that the same belong to A. B. you will deliver the same to him, otherwise deliver them to the claim ant or person entitled, and make return hereof, and of the inquisicul of such jury, on the
[day of return.) Witness, &c.
No. 6.—(Vide Section 203.)
to-wit: Inquisition taken this
day of D. 18 . before me,
Esquire, Sheriff of
County, by virtue of the writ annexed, upon the oath of
lawful men of the said County, who say that the property in the said goods and chattels in the said writ named is in the said
, and not in the said -Sealed and dated the day and year aforesaid.
No.7.-(Vide Section 205.)
Form of Postea on a verdict for Defendant on a plea of nor cepit. Afterwards, &c. (as in the usual form) upon their oaths say that the said defendant did take and detain the goods and chattels mentioned in the declaration, as a distress for rent due for certain premises hell by the plaintiff under a demise at a certain rent; and that there was due to the defendant for such rent at the time of the distress, and still is
, and they assess the damages of the defen. dant for the said rent, and the costs and charges of making the distress, at the sum of , besides his costs of suit, &c.
(If the bailiff of the landlord, or any one acting in aid of the lana. lord, be made a defendant, the postea may be raried, as follows :) “And that there was due to the defendant C. D. (the landlord] for such rept, &c. (as abote) and that the defendant E. F. was at the time of making the said distress, the bailiff of the said C. D. (or " that the said E. F. was present aiding and assisting the said C. D. in making the said distress)," &c.
No. 8~(Vide Section 205.)
Form of Judgment on Postea, No. 7.
writ, and considered that the by the jurors,
[Proceed in the usual form to the end of the Postea-then thus :) Therefore it is considered that the said A. B. take nothing by this said writ, and that the said E. F. do go thereof without day, &c. And it is further considered that the said E. F. do recover against the said A. B. the said sum of
by the jurors aforesaid assessed, and also for his costs and charges by him about his defence in this behalf expended, by the Court here adjudged to the said E. F., which said damages and costs in the whole amount to
and that the said E. F. have execution thereof, &c.
which suiddamed, by the Colharges by him
No. 9.—(Vide Section 206.)
Form of Entry of Verdict on Postea, when damages are awarded
to the Defendants.
[Commence in the usual form] say upon their oaths that they find for che defendant, and assess the damages of the said defendant to pursuant to law, besides his costs and charges, &c. (as in the usual form).
No, 10.-(Vide Section 206.)
Form of Judgment on Postea No. 9.
Therefore it is considered that the said defendant do have a return of his said goods and chattels, and that he do recover against the said plaintiff his said damages by the jurors assessed, and also
for his costs and charges by the Court adjudged of increase to the defen: dant according to law, and that he have execution thereof..
No. 11.—(Vide Section 206.)
[Commence as in the first form above] and at the request of the said defendant they further say, that the said goods and chattels when replevied were worth
, which they award to the said defendant in damages according to law, and they assess the defendant's other damages by reason of the premises to pursuant to law, besides his costs and charges, &c. [as in the usual form).
No. 12.—(Vide Section 206.)
Therefore it is considered that the said defendant do recover against the said plaintiff the said sum of
the value of the goods afore. said by the jury assessed and also
for his said costs by the Court adjudged of increase to the said defendant, and the said damages and costs amount to
, and that the said defendant have execution thereof.
No. 13.-(Vide Section 206.)
Victoria, by the Grace of God, &c.
Greeting : We command you that of the goods and chattels (lands and tenements) of A. B. in your bailiwick, you cause to be levied and made which lately in our Supreme Court (or County Court for the County of
were awarded to C. D. in an action of replevin lately prosecuted against him. by the said A. B. in our said Court, as well for unlawfully taking the goods and chattels of the said C. D. as for the costs of defence of the suid action, whereof the said A. B. is convicted; and have that money before us, (or before our Judge of the County Court for the County of
„) at Frederiction (or as the case may be,) on
(a return day in Term), to be rendered to the said C, D.; and in what manner you shall have executed this our writ make appear at the return hereof, and have you there then this writ. Witness, &c. &c.
[If the goods hare not been restored to the defendant, and the value of them is awarded in damages, proceed as above to the asterisk- then thus)—as well for the value of certain goods and chattels of the said C. D. unlawfully taken by the said A. B., and for the said unlawful taking, as for the costs of defence of his said action, whereof, &c.
[If the goods replevied have been taken as a distress for rent, the form of the execution may be varied to suit the circumstances.]
CHAPTER 38. ARREST, IMPRISONMENT AND EXAMINATION OF DEBTORS. Section.
Section. 1 Arrest, when allowed.
21 Witnesses. 2 Arrest after action commenced 22 Punishable by attachment for non3 Conditions of bail bond.
attendance, 4 Defendant held in custody seven 23 Attachment may be set aside.
days after judgment. Delay in 24 Cominissioners for examination proceeding.
of debtors. 5 Deposit, Bond, Examination ; 25 Concurrent jurisdiction of Recor. Action on Bond ; Relief.
der and Common Clerk of Saint 6 Notice by debtor of examination. John. 7 When debtor may be discharged Attachment on Judge's Order. from custody.
26 Attachment for money ordered to 8 Discharge cancels Bood, bụt suit be paid by Court or Judge. inay be continued.
27 Person entitled to attachment 9 Order to bring up debtor in actual may issue Fi. Fa. without custody.
demand. 10 Adjournment of examination. Arrest and imprisonment after 11 Property disclosed subject to at.
28 Not allowed except in certain 12 How dealt with.
cases. 13 Relief of debtor remanded. 29 & 32 When allowed. Justices' Courts.
30 One year the limit of imprison. 14 Arrest and imprisonment in Jus- ment. tices' and Local Courts.
31 What Courts may exercise this 15 Debtor may be examined.
power. 16 May be imprisoned on execution. 33 & 34 Proceedings for order of im. 17 Discharge from imprisonment not prisonment. to satisfy debt. .
35 Effect of order. General Provisions. 36 Shall not operate as a discharge 18 Debtor not to be arrested twice. of debt. 19 Possession of money cause for 37 Forms. remanding debtor.
38 Costs. 20 Plaintiff'may examine debtor after 39 Table of fees and general rules. judgment.
Schedule. ARREST IN THE SUPREME COURT AND COUNTY COURTS.
1. Any person not having privilege, as hereinafter men. tioned, may be arrested and held to bail or committed to prison on mesne process, in any cause of action within the
jurisdiction of the Supreme Court or any County Court, if an affidavit be first made by the plaintiff, or his agent, of the plaintiff's cause of action, and that the amount thereof, being not less than twenty dollars, is justly due to the plaintiff, and that such arrest is not made for the purpose of vexing or harassing the debtor; provided always, that when the cause of action is other than a debt certain, a writ of capias may be issued to arrest a defendant upon obtaining a Judge's order for that purpose in such cases, and in such manner as has heretofore been the practice ; provided also that nothing herein contained shall subject any person to arrest who by reason of any privilege may now by law be exempt therefrom: Such affidavit may be made before a Judge of the Cuurt, or before any Commissioner appointed to take affidavits to be read in the Supreme Court; and in cases where the affidarit shall be made outside of the Province, then before any Judge or officer or other person who may be authorized to take affidavits for use in this Province, in the country or place in which such affidavit is made; and the sum or sums specified in such affidavit or order, as the case may be, shall be indorsed on such writ, for which sum or sums so indorsed the Sheriff or other officer executing the writ shall take bail, and for no more.
2. The plaintiff after the commencement of an action by writ of summons, but before judgment in such action, upon making and filing an affidavit of debt conformably to the last preceding Section and the practice of the Court in bailable actions, with an allegation therein that he has good reason to believe, and does believe, that the defendant is immediately about to leave the Province, or on obtaining a Judge's order for that purpose (in cases where by the practice of the Court a Judge's order to hold to bail is necessary), may sue out a writ of capiąs and one or more concurrent writs, and renew such writs by alias or pluries, according to the practice of the Court.
3. The condition of bail to the action shall be that the judgment shall be satisfied, or that the defendant shall not go out of or be absent from the Province after judgment, and within six months thereafter, without leave of the Court or Judge, and where, on or before the first day of October in the year of our Lord one thousand eight hundred