Page images
PDF
EPUB

the Supreme Court, or out of any County Court in the Province, the Sheriff having the execution thereof may and shall seize and take any money or bank notes (including notes commonly known as Dominion currency), or other currency, and any checks, bills of exchange, promissory notes, bonds, specialties, or other securities for money, belonging to the person against whose goods and chattels, lands and tenements, such writ of fieri facias shall be sued out; and may and shall pay or deliver to the party sueing out such execution, any money, or Bank or Dominion notes, or other cur. rency, which shall be so seized, or a sufficient part thereof; and may and shall hold any such checks, bills of exchange, promissory notes, bonds, specialties, or other securities for money, as a security or securities for the amount by such writ of fieri facias directed to be levied, or so much thereof as shall not have been otherwise levied and raised ; and may in the name of such Sheriff sue and institute any action at law or suit in equity for the recoyery of the sum or sums secured thereby, if and when the time of payment thereof shall have arrived; and that the payment to such Sheriff by the party liable on any such check, bill of exchange, promissory note, bond, specialty, or other security, with or without suit, or the recovery and lerying execution against the party so liable, shall discharge him to the extent of such payment, or of such recovery and levy in execution, as the case may be, from his liability on any such check,bill of exchange, promissory note, bond, specialty, or other security; and such Sheriff may and shall pay over to the party sueing out such writ the money so to be received, or such part thereof as shall be sufficient to discharge the amount by such writ directed to be leried; and if after satisfaction of the amount so to be levied, together with the Sheriff's poundage and expenses, any surplus shall remain in the hands of such Sheriff, the same shall be paid to the party against whom such writ shall be so issued; provided that no such Sheriff shall be bound to sue or commence any action or suit against any party liable upon any such check, bill of exchange, promissory note, bond, specialty, or other security, unless the party sueing out such execution shall enter into a bond with two sufficient sureties for indemnifying him from all costs and expenses to be incurred in the prosecution of such action

or suit, or to which he may become liable in consequence thereof, the expense of such bond to be deducted out of any money to be recovered in such action.

12. When the money due on any security on real estate is collected by a Sheriff under this (hapter, he may give a discharge under his hand and seal, duly acknowledged, which, when registered, shall operate as a discharge of such security.

13. When any Sheriff shall, by virtue of the provisions of Section eleren of this Chapter, have seized and taken any security on real estate which may contain a power of sale, he may execute such power and act under the same to the same extent and in like manner as the person holding such security could have done; and he may on a sale under such power execute a Deed to any purchaser, which, when acknowledged, shall be as effectual as if such power of sale had been exercised by the person holding the security.

14. No sale of the lands of any person shall be made until the Sheriff advertise the time and place thereof at least three months continuously in some newspaper in the County and if there be none, then in the Royal Gazette, also post such advertisement at least three months prior to such sale in the Office of the Registrar of Deeds, on the Court House,in some public place in the Parish where the landslie, and in another public place in the said County; the sale shall be made at the Court House, unless the Sheriff shall otherwise direct in the notice, and be between the hours of twelve and five in the afternoon.

15. Ifthe defendant, by noticein writing delivered to the Sheriff twenty days before the sale, require that certain portions of the land so advertised be sold first, he shall cause the same to be first put up for sale, and if a sufficient sum shall be realized to satisfy the execution and expenses, no other part of such land shall be sold, otherwise he shall proceed to sell the remainder.

16. The Sheriff shall execute to the purchaser a Deed (A) of such lands, reciting the execution under which the same was made as directed in Form (A); which shall be sufficient to convey all the interest of the person against whom such execution was issued.

17. The Deed of the Sheriff duly executed, acknowledged, and registered, with an affidavit of such officer or his deputy, made at any time prior to the registry thereof, before and endorsed thereon by any person authorized to take acknowledgments or proof of Deeds, that the property so conveyed was regularly seized, advertised, and sold, with proof of the judgment and execution upon which the same is founded, shall be prima facie evidence of all the matters therein set forth.

18. If any Sheriff, after seizing or taking any money, bank notes, currency, checks, bills of exchange, promissory notes, bonds, specialties or other securities for money, under the provisions of Section eleven of this Chapter, and before any suit or action shall have been commenced for the recovery of the same, shall die or go out of office, any such suit or action may be brought and prosecuted in the name of his successor in office, and any power of sale in any such security may likewise be executed by such successor. And if during the pendency of any such suit or action, the Sheriff in whose name such action or suit is being prosecuted, shall die or go out of office, such action or suit shall not abate, but the same shall, on an order of a Judge of the Court in which such suit or action is pending being made that the suit or action stand revived in the name of the successor in office of such Sheriff, be continued and prosecuted in the name of such successor, on a bond being first given to him as provided in Section eleven, as if the suit or action were being commenced in his name; and if after any Sheriff shall have given any notice of sale under a power contained in any security so seized as aforesaid, and before executing a conveyance thereunder and completing such sale, shall die or go out of office, his successor in office may complete such sale and make a conveyance thereunder in like manner and with the like effect in every respect, as the Sheriff so dying or going out of office could have done.

19. If the Sheriff dies or goes out of office before the completion of the sale of land under a writ of fieri facias, the affidavit required by Section seventeen may be made with the like effect by his successor, who shall swear to the regularity of the proceedings taken by him, and that upon diligent enquiry he verily believes that the proceedings taken by his predecessor were regular.

20. In case of the death or going out of office of the Sheriff who has seized, advertised, or sold any lands, the sale or conveyance thereof, or both, may be completed by his successor without any new writ or other alteration in the proceedings, in the same manner and with the like effect in all respects as if all the proceedings had been done by the same officer, di. viding the poundage equally between the officer who made the sale and conveyance, and the officer who made the seizure, or his representatives, and the other execution fees shall be paid to the officer who performed the duty.

21. When land so conveyed shall be in possession of the tenants of the judgment debtor, the purchaser shall become the landlord, and shall have the like rights and remedies against the tenant as the judgment debtor would have had, and be entitled to all rents accruing after such purchase.

22. If any Sheriff shall in any way act contrary to his duty herein directed, or refuse to pay over the surplus money arising from any sale, or otherwise contrary to any order of the Court, he shall answer the same to the person injured, in damages to be recovered in any Court of competent jurisdiction, with costs of suit.

23. No judgment of any other Court than the Supreme or a County Court, or recognizance other than such as shall be entered into in the name of Her Majesty, shall affect or bind lands.

24. The wearing apparel, bedding, kitchen utensils, and tools of his trade or calling to the value of one hundred dollars, of any debtor, shall be exempt from levy or sale under execution...

SCHEDULE

(A) Form of Conveyance by the Sheriff. To all to whom these presents shall come. I, A. B., Sheriff of , send greeting : Whereas by a certain Writ of Fieri Facias to me directed, issued the

day of in the year &c., I was commanded to make of the goods and chattels, lands and tenements of

, in my bailiwick, the sum of , and have the same at the Court on (return day] to render to ;

And whereas I have for want of goods and chattels taken certain lands and tenements of the said , described

as follows: (set forth the description] ; and after advertising and selling the same according to law, became the purchaser for the sum of ;

Now know ye, that I, the said Sheriff, in pursuance of the power in me vested, and in consideration of the said sum of

do grant, bargain and sell unto the said , all the said lands and tenements, together with all buildings and the appurtenances thereon being, to hold the same unto the said

his heirs and assigns, for ever. In witness whereof, I have hereunto set my hand and seal the

day of in the year 18 . Signed, Sealed, and delivered /

in the presence of On this day of , 18 , before me personally appeared the above named Sheriff, and acknowledged the within conveyance to be his act and deed, executed by him for the purposes therein mentioned.

-- J. P. On this day of 18 , before me, &c., per: sonally appeared the above named Sheriff (or Deputy Sheriff) and made oath that all the acts required by law for sale of the lands and tenements mentioned in the above Deed were truly performed by the said Sheriff.

- J. P.

CHAPTER 48.

FOREIGN JUDGMENTS. Plea to Action on Foreign Judgment. In any action now pending or hereafter to be instituted in any Court in this Province on a Foreign Judgment, where the defendant was not personally served with the original process or first proceeding in the suit, within the jurisdiction of the Couri where the said judgment may be obtained, it shall be competent for the defendant to enter into the subject matter of such Foreign Judgment and to avail himself of any matter of law or fact which would have been available as a defence, had the action on which such judgment was had and obtained been originally brought and prosecuted in any of the Courts of this Province ; provided always, that

« PreviousContinue »