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the party in the meantime as may appear just; and when the writ is awarded by and returnable into the Court, the like proceedings may be had.
3. The Court or Judge shall direct the payment of the expenses of bringing up.the party, and returning him to custody if remanded, and for non-payment shall award process of contempt, the proceedings to be as in other cases of contempt for non-payment of money.
4. Upon sufficient cause shewn to any Judge, by or on behalf of any person confined in any gaol or prison, such Judge may and is hereby empowered, (instead of granting his fiat for a Writ of Habeas Corpus cum causa, requiring the keeper of such gaol or prison to bring the prisoner before him.in order that the legality of such imprisonment may be inquired into, and discharge, bailment or recommitment had thereon,) by order in writing (A) signed by him, with his name, to require and direct such keeper to return to him whether or no such person is detained in prison, together with the day and cause of his having been taken and detained.
5. It shall be the duty of such keeper immediately upon the receipt of such order to make a true and full return in writing to such Judge, of the day and cause of such taking and detention to the same effect as a return to a Writ of Habeas Corpus, such return always to include a copy of the process, warrant or order upon which the said prisoner is held, where the same is of a criminal nature, or upon any summary complaint or conviction before any Justice of the Peace ; and such Judge may enforce obedience to such order by process of contempt, in the same manner as he may compel proper return to be made to a Writ of Habeas Corpus.
6. Upon return to such order, the Judge may proceed to examine into and decide upon the legality of the imprisonment, and make such order, require such verification, and direct such notices or further returns in respect thereof, as he may deem necessary or proper for the purposes of justice, and may, and he is hereby empowered, by order in writing, signed as aforesaid, to require the immediate discharge from prison, or may direct the bailment of such prisoner in such manner and for such purpose, and with the like effect and proceeding, as is allowed upon habeas corpus; such bail, when ordered, to be entered into before any Juctice of the Peace specially named in such order, or any Justice of the County or place where there is no such nomination.
7. It shall be the duty of such keeper, immediately upon the receipt of any order of a Judge in relation to a prisoner in his custody, to communicate the same to such prisoner, and to give him a true copy thereof, if demanded, and to obey the requirements of the same.
8. It shall be the duty of such keeper, and all persons, to obey all orders of a Judge made under this Chapter in relation to any prisoner.
9. The matter of the return made to the order of a Judge may be heard and decided on by any other Judge, who shall have the same power and jurisdiction in respect thereof as the Judge by whom the first order was made.
10. No orders made under this Chapter shall require or enable the keeper of any gaol or prison to discharge the prisoner from any commitment or charge, other than that specified in such order; but it shall be the duty of such keeper, in every return made to a Judge's order, to specify the several causes of commitment and detention, if more than one ; and if between the time of making the return and receiving an order for the discharge or bailment, any other warrant, process or order shall have been delivered to him, requiring the detention of the prisoner upon any charge of a criminal nature or summary complaint or conviction, such keeper shall, without any further order, make and transmit to the Judge an additional return, with a copy of such warrant, process, or order, and the time of receiving the same; which may be dealt with by such Judge as if made pursuant to an order for that purpose granted.
11. Nothing in this Chapter contained shall extend or be construed to deprive any person who may have been falsely imprisoned, from his remedy by civil suit against any person who may have illegally caused such imprisonment; but the Judge by whom relief may be afforded under this Chapter, may by his order exempt any such keeper of a gaol from civil suit who may appear to him to have acted upon the warrant or order of any Judge or Justice, according to the requirement of the same, without malice or evil intent, although such warrant or order may be bad in form or substance; and any such order of exemption shall be a bar to
any action brought against such keeper, and the same may be given in evidence under the general issue.
12. The term “Judge 'in this Chapter shall mean a Judge of the Supreme Court.
(A) IN THE SUPREME COURT. Sufficient cause having been shewn to me on behalf of
, a prisoner confined in the common gaol of the County of , I do order and direct the keeper of the said gaol to return to me forth with whether or no such person is detained in such gaol, together with the day and cause of his haring been taken and detained, if so detained ; and I appoint
the day of , at the hour of , at my Chambers in the City of St. John, (or as the case may be,) as the time and place for hearing the application for discharge. Dated A. D. 187 .
J. C. A., Judge of the Supreme Court.
15 Attachment when valid against 1 When Attachment inay issue.
subsequent purchasers or credi. 2 Contracting parties may agree
16 When attachment shall take effect. that no Attachment issue in res.
17 Registrar to endorse on memo. pect to contract. 3 Form of affidavit to obtain writ.
randum day, hour and minute 4 Proceedings in case of damages 10
received ; Registrar's fee.
* 18 What property Sheriff shall hold for breach of contract. 5 Bond to Sheriff; assignment.
in his possession. fi Courts out of which writs way
19 Proceedings when personal proissue.
perty cannot be taken. 7 Form of Writ.
20 Registrar to endorse memoran. 8 Affidavit and particulars to be an. .
dum, and file. nexed to writ in the cause.
21 Property in Joint Stock ('ompany 9 A copy of writ and affidavit shall
how attached. be served on defendant.
22 Bills so attached may be put in 10 Successive Attachments. Il Attachment by Sherift of different 23 Mortgages may be attached. County.
"24 Sherift may exercise power of 12 When Writ shall be returned.
sale in inortgages.
Attachment of Mortgaged Properir. Mode of Attaching Property
25 Equity of redemption niay be al13 Upon receipt of Writ, Sheriff to tacher. execute same.
20 Mortgaged personal property how 14 Attaching real estate.
Section. 27 When property sold, proceeds Continuance and abatement of · how disposed of.
Attachment. 28 Rights of plaintiff after redemp- 48 Time property and proceeds of tion.
sale shall be held after final Release of Property on bond.
judgment. 29 When defendant may discharge 49 property attached.
50 Sale of personal property by consent 51
| Cases where attachment may or on appraisement.
be dissolved. 30 When property may be sold with 53
consent of creditors and debtor; 54 - proceeds of sale how disposed of. 55 31 Perishable property how dis. 56' Mode of releasing Attachment on 32 posed of.
Registry. 33 Appraisers to be sworn ; duty of Proceedings on the Bond. Appraisers.
57 When Sheriff may assign bond to Rights of part owners of attached plaintiff. [roperty. .
Subsequent Attachment. 34 Part owner of property attached, 58 Property attached in more than
and not party to suit, may have one suit, how held and disposed
property appraised. 35 When property shall be delivered 59 If attached property be reduced to part owner.
to money, how treated. 36 When defendant's share of pro- 60 Proceeds of sale of attached pro.
perty shall vest in part owner. perty, how disposed of. 37 When partnership property not 61 Proceeds of sale of property at. liable to attachment.
tached by two or more Sheriffs, Attaching property of third persons. how disposed of 38 Duty of Sherift when property Reduction of excessive Attachment. claimed by third party.
62 When defendant may apply for a 39 When claiin tried.
reduction of amount. 40 What to constitute Record ; proof Setting aside Attachment.
by claimant and plaintift. 63 Attachment, how discontinued 41 Composition of Jury; oath
by plaintiff. 42 If verdict for claimant, Sheriff 64 When defendant may apply to
shall restore property to claim- have attachment set aside.
Attachment during Suit. 43 When costs shall be recovered 65 Issue of writ in suit upon contract from claimant.
66 Proceedings under attachment 44 If claimant give bond to Sheriff, during suit.
Sheriff may restore property. 67 Writ to be returned by Sheriff, 45 When Sheriff may assign bond to and filed with Clerk.
Plaintiff'; action thereon. 68 Forms and general rules. 46 When claim may be decided by 69 Execution for costs. Judge.
Schedule. 47 Application for new trial.
WHEN ATTACHMENT MAY ISSUE. 1. The property, real or personal, within the Province, of any defendant, which by law is liable to be taken in execution, may, in respect of any cause of action upon a contract in the cases herein provided, whether arising before or after the passing of this Chapter, be attached and held as security to satisfy the judgment which the plaintiff may recover, tu the amount for which the attachment is hereby authorized to be made.
2. A person at the time of entering into a contract may, except in the case of a negotiable instrument, agree and stipulate, as part of such contract, that in respect thereof the property of the contracting party shall not be subject to attachment.
3. No writ of attachment shall be issued unless the plaintiff, or some one on his behalf, sball first by affidavit to be sworn before any person authorized to take affidavits to be read in the Supreme Court, make oath of the nature of the cause of action, and of the amount due, and also (except when the action is upon a negotiable instrument, or when the cause of action arose before the eighth day of April in the year of our Lord one thousand eight hundred and seventy four) that no agreement was entered into whereby no attachment should issue in respect of such cause of action ; and such affidavit shall also state(1) That the demand for which attachment is to issue is
not secured by a mortgage, pledge or lien upon real or
personal property of the defendant; and (2) That the attachment is not sued out for the purpose
of vexing or harassing the defendant, or to hinder,
delay or defraud any creditor of the defendant; and (3) Either (a) that the defendant is a non-resident of the
Province, and that the contract was made in or is payable in the Province, or that the plaintiff or one of the plaintiffs is a resident of the Province; or (b) that the defendant is a resident of the Province and that plaintiff is apprehensive that unless attachment is issued, plaintiff may lose his demand; and where the affidavit is made by an agent having personal knowledge of and control over the matter, the agent may state his own apprehension. It shall not be necessary in any case to
set forth the grounds of such apprehension. 4. In cases of a contract other than a contract for the payment of money, no attachment shall issue unless upon an order of the Court in which the action is brought, or a Judge thereof, fixing the amount for which the same shall issue, to be made upon affidavit as aforesaid, and upon it satisfactorily appearing to the Court or Judge by affidavit that plaintiff is likely to be materially prejudiced in the recovery of his demand unless an attachment should be issued, and in such