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and what property he has which, by law, is liable to be taken in execution on such judgment; and such Judge, Clerk of the Peace, or Commissioner, is hereby authorized to make such order, and therein to name a time and place for the examination of the said debtor, and for the production of any books or documents, and the examination shall be conducted in the same manner as in case of an oral examination of an opposite party; and disobedience of such order by such debtor, after service of a copy thereof on him, or a refusal to answer all proper questions on such examination, shall be punishable by attachment for contempt, which attachment may issue out of the County Court on the order of a Judge thereof, on affidavit of the facts.
21. The Judge of the County Court, Clerk of the Peace, or Commissioner, or other person authorized to hold and take an examination under this Chapter, may make an order requiring any person to attend such examination as a witness on behalf of either of the parties; and on service of such order on such witness, by exhibiting to him the original order, and leaving with him a copy thereof, with tender of conduct money, it shall be the duty of the person so served to attend such examination and give evidence thereat.
22. Any witness so served, refusing to attend and give evidence, shall be punishable by attachment for contempt, which attachment may issue out of the County Court on the order of a Judge thereof, on affidavit of the facts, and such witness shall be liable to the party requiring his attendance in an action for damages, as in case of nonattendance under a subpæna.
23. The Judge of the County Court shall have the right, on application of the debtor, or any witness, as aforesaid, to set aside any attachment for contempt under this Chapter, if the same has been improperly obtained, or to discharge the party imprisoned thereunder upon his purging such con. tempi by subsequent obedience, and upon payment of such costs as the Judge may direct.
24. The Gorernor in Council may appoint one person in the Shire Town of each of the Counties of the Province, as a Commissioner for taking the examination and doing any other of the acts which a County Court Judge or the Clerk of the Peace may do, by virtue of the preceding Sections of this Chapter, such Commissioner being sworn to the faithful discharge of his duties before some qualified person duly appointed by the Lieutenant Governor.
25. The Recorder and Common Clerk of the City of Saint John, shall each have within the City and County of Saint John, concurrent jurisdiction with the County Court Judge or Clerk of the Peace of the said City and County in all matters aforesaid.
ATTACHMENT ON JUDGE'S ORDER.. 26. Notwithstanding any thing herein contained, any Court or Judge may enforce the payment of any money ordered to be paid by such Court or Judge, by attachment, and in any case, the party arrested may give bail for the limits, and shall have the right to apply for the benefit of any law for the relief of Insolvent Confined Debtors.
27. Any person who is entitled to apply for an attachment, may, without a demand of the money ordered to be paid, on application obtain an order of the Court or Judge that an execution in the form (B) in the Schedule hereto, may issue out of the Court in which such application is made, against the goods and chattels, lands and tenements of the party against whom such attachment is sought, and such execution may thereupon issue without any previous process, proceeding, or judgment, to levy the sum ordered, with expenses of levy, and the proceedings under such execution shall be the same as in case of fieri facias execution on a judgment in the said Court.
ARREST AND IMPRISONMENT AFTER JUDGMENT. 28. No person shall be arrested or imprisoned after judg. ment in any civil suit, or for making default in the payment of a sum of money, except as in this or any other Chapter of the Consolidated Statutes is otherwise provided.
29. Arrest and imprisonment may be had and allowed for-
of a penalty, other than a penalty in respect of a con.
tract; (2) Default in payment of any sum recoverable on sum
mary conviction ; (3) Default in payment of County, City, Towu, Parish or
District rates or taxes ;
(4) Default by an attorney or solicitor in payment of a sum of money when ordered to pay the same in his
character of an officer of the Court making the order; (5) Default by a trustee or person acting in a fiduciary
character and ordered to pay by the Court of Equity
any sum in his possession or under his control; (6) Default in payment of sams in respect of the payment
of which orders are in this Chapter authorized to be
made: Provided first, that no person shall be imprisoned in any case excepted from the operation of the preceding Section for a longer period than one year; and secondly, that nothing in this Chapter shall alter the effect of any judgment except as regards the arrest and imprisonment after judgment; and provided also, that nothing in the preceding Section shall be deemed to limit the power of imprisonment for contempt of Court or for disobedience of any order for examination of a judgment debtor or witness in any case where such order is by law allowed.
30. Subject to the provisions hereinafter mentioned, any Court may commit to prison for a term not exceeding one year, or until payment of the sum due, with or without privilege of bail or limits, any person who makes default in payment of any sum due from him in pursuance of any order or judgment of the Court.
31. Provided that the jurisdiction by the last Section given of committing a person to prison, shall in the case of the Supreme Court be exercised by the Court or a Judge thereof, and may be exercised in respect of the judgment or order of any Court; and in case of the County Court, be exercised by the Court, or the Judge of any of the County Courts and in respect of the judgment or order of any County Court, or any Court having jurisdiction to a lesser amount than the County Court, and by an order shewing on its face the grounds on which it is issued. • 32. And provided also, that such jurisdiction shall only be exercised where it is proved to the satisfaction of the Court or Judge, as the case may be(1) That the person making default either has or has had,
since the date of the order or judgment, the means to pay the sum in respect of which he has made default
and has refused or neglected, or refuses or neglects to
pay the same; or (2) That the person making default had, in incurring the debt or liability in respect of which he has made default, obtained credit under false pretences, or by means of any other fraud, or had incurred the liability by committing an act for the commission of which the person, by the laws of the country where the same was committed, was liable to be proceeded against criminally; or (3) That the person making default has with intent to de.
fraud his creditors or any of them, made or caused to be made any gift, delivery or transfer of or charge on his property, whereby the plaintiff is materially prejudiced
in obtaining satisfaction of the order or judgment; or (4) That the person making default has with intent to
defraud his creditors, or any of them, concealed or removed any part of his property since or within two months before the date of the judgment or order, whereby the plaintiff is materially prejudiced in obtaining
satisfaction of the order or judgment; or (5) That the person making default is about leaving the
Province, and that his absence will materially prejudice
the plaintiff in obtaining satisfaction of his judgment. 33. The order of commitment, which may be in the form (C) in Schedule hereto, or to the like effect, may be issued ou au ex parte application of the plaintiff upon oath or upon summons, and hearing both parties upon oath ; but if an ex parte order be made, the debtor may apply to the Court or Judge that issued the order, or to any other Court or Judge that would have been entitled to have issued the order in the first instance, for his discharge, and on notice to the plaintiff or his attorney, the matter shall be heard upon oath, and the order of commitment be discharged, varied, or confirmed ; and if an ex parte order be made the debtor may have the privilege of limits for one week after his arrest, in order to admit of the application for discharge as a foresaid, notwithstanding that such order for commitment be expresed to be without privilege of bail or the limits: In any such hearing the testimony shall be reduced to writing,and subpænas may be issued out of the Court in which the judgment was recovered, or any Court of equal or superior jurisdiction, requiring
the witness to attend at such examination, and the same shall be of like force as subpænas issued out of such Court in other cases, and except on an ex parte application the Court or Judge may award costs to the creditor or debtor, and if awarded against the debtor may include the same in the order for commitment, and concurrent orders may be issued for exeoution in different Counties.
34. In any such inquiry the Court or a Judge shall have power, by writing, to direct the Sheriff or Gaoler to bring the debtor up for examination, and the Sheriff or Gaoler shall not, in the absence of negligence or default, be liable for any escape in consequence of obeying such order.
35. The order of commitment shall direct the immediate payment of the amount for which default is made, and any costs awarded as aforesaid, and on non-payment of the same, that the defendant be committed, and the order shall state whether the commitment be with or without privilege of bail or limits; and the order of commitment shall be obeyed and executed by the Sheriff; and on failure of payment the defendant shall be imprisoned according to the tenor of the order, and shall be discharged out of custody upon payment of the amount named in the order.
36. No imprisonment under the thirtieth Section shall operate as a satisfaction or extinguishment of any debt or demand, or cause of action, or deprive any person of any right after such imprisonment to take out execution against the lands, goods or chattels of the person imprisoned, in ihe same manner as if such imprisonment had not taken place ; and no discharge of any person from arrest or imprisonment shall affect the creditor's rights or remedies against the lands, goods, or chattels of the person arrested or imprisoned, but the same shall be and remain as if such arrest or imprisonment had not taken place.
37. The Forms contained in the Schedule of Forms to this Chapter, or Forms to the like effect, shall be used in proceedings hereunder; and the Supreme Court is hereby empowered from time to time to make and to alter, rescind and amend, any general rules that may be necessary for the effectual carrying out of the provisions of this Chapter.
38. In all cases where costs are awarded hereunder, an execution may issue therefor in the Form (B), or to the like effect.