CHAPTER 66.

An Act respecting Absconding Debtors.

ABSCONDING Debtor defined, s. 1.
PROCEDURE TO OBTAIN WRIT OF AT-

TACHMENT, Ss. 2, 3.

DIVISION COURT ATTACHMENT, SUPER

SEDED, s. 16.
SHERIFF'S COSTs, ss. 17, 18.

WRIT OF ATTACHMENT AND SUMMONS, COSTS WHERE ATTACHMENT NOT WARss. 4-7.

RANTED, s. 19.

PROCEDURE AFTER SERVICE OF WRIT: SALE OF CHATTELS, s. 20.

Order to proceed, s. 8.

Proof of plaintiff's claim, s. 9. BAIL AND RESTORATION OF PROPERTY,

ss. 10-12.

ATTACHMENT OF DEBTS DUE TO THE
ABSCONDING DEBTOR, ss. 21, 22.
ACTIONS BY SHERIFF FOR OUTSTAND-
ING DEBTS, ss. 23-25.

WHAT PROPERTY MAY BE ATTACHED, RATABLE DISTRIBUTION AMONG s. 13.

PERISHABLE PROPERTY, Ss. 14, 15.

CLAIMANTS, ss. 26, 27.
SURPLUS TO BE RESTORED TO DEBTOR,
s. 28.

ER MAJESTY, by and with the advice and consent of

enacts as follows:

1. If a person resident in Ontario indebted to any other Who to be person, departs from Ontario with intent to defraud his credi- regarded as an absconding tors, and at the time of his so departing is possessed to his own debtor. use and benefit, of any real or personal property, credits or effects therein not exempt by law from seizure, he shall be deemed an absconding debtor, and his property, credits or effects aforesaid, may be seized and taken for the satisfying of his debts by a writ of attachment. R. S. O. 1877, c. 68, s. 1.

PROCEDURE TO OBTAIN WRIT OF ATTACHMENT.

In the High Court.

that the de

etc.

2. Upon affidavit made by a plaintiff, his servant or Proceedings agent that a person so departing is indebted to the plaintiff upon affidavit in a sum exceeding $100, and stating the cause of action, and fendant has that the deponent has good reason to believe and does verily absconded, believe that the person has departed from Ontario and has gone to (stating some place to which the absconding debtor is believed to have fled, or that the deponent is unable to obtain any information 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, and was, at the time of his so departing, possessed of real or personal property, credits or effects, not exempt by law from seizure, to his own use and

Further affidavit.

benefit in Ontario, and upon the further affidavit of two other credible persons, that they are well acquainted with the debtor mentioned in the first named affidavit, and have good reason to believe and do believe that the debtor has departed from Ontario with intent to defraud the plaintiff, or to avoid being arrested or served with process, Writ of attach the High Court, or a Judge thereof, or the Judge of a County ment to issue. Court, may order a writ of attachment to issue from the High Court, and may in the order appoint the time for the defendant's putting in special bail, which time shall be regulated 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. R. S. O. 1877, c. 68, s. 2.

In County Courts.

Proceedings in 3. In case the sum claimed is within the jurisdiction of the cases within County Court County Courts, such Court or the Judge or acting Judge jurisdiction. thereof, may in like manner order a writ of attachment to issue from such Court, and the proceedings thereon shall be the same as in this Act provided. R. S. O. 1877, c. 68, s. 3.

Contents of writ.

To be dated on day of issue

and to be in force six

months.

Writ of

issue in dupli

cate.

WRIT OF ATTACHMENT AND SUMMONS.

4. The writ of attachment shall also contain a summons to the absconding debtor, and shall be in the form given in the Schedule to this Act. R. S. O. 1877, c. 68, s. 4.

5. The writ shall be dated on the day on which it is issued, and shall be in force for six months from its date, and may be renewed for the purpose of effecting service on the defendant, in like manner as a writ of summons. R. S. O. 1877, c. 68, s. 5.

6. Every writ of attachment shall issue in duplicate, and attachment to shall be so marked 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 service on the defendant. R. S. O. 1877, č. 68, s. 6.

rent writs to

Plaintiff may 7. The plaintiff may, at any time within six months from obtain concur the date of the original writ of attachment, without further other sheriffs. order from the Court or a Judge, issue from the office whence the original writ issued, one or more concurrent writ or writs 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 Concurrent" in the margin, 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 the attachment of his real or personal property, credits, or effects in aid of the original writ.

1877, c. 68, s. 7.

PROCEDURE AFTER SERVICE OF WRIT.

R. S. O.

service, etc.

8. In case it is shewn by affidavit to the Court or a Judge Further prothat a copy of the writ was personally served on the defendant, ceedings after or that reasonable efforts were made to effect service, and that the writ came to his knowledge, or that the defendant has absconded in such a manner that after diligent inquiry no information can be obtained as to the place he has fled to, the Court or Judge, if the defendant has not put in special bail may either require some further attempt to effect service or may appoint some act to be done which shall be deemed good service, and thereupon (or on the first application, if the Court or Judge thinks fit), the Court or Judge may authorize the plaintiff to proceed in the action in such manner and subject to such conditions as the Court for Judge may direct or impose. R. S. O. 1877, c. 68, s. 8.

prove his

Rev. Stat.c.53.

9. Before the plaintiff obtains judgment he shall prove the Plaintiff must amount of the debt or damages claimed by him in the action, claim, etc. either before a jury on an assessment, or by reference as provided in section 1 of The Act Respecting Arbitration and References, according to the nature of the case, and no execution shall issue until the plaintiff, his solicitor or agent, has made and filed an affidavit of the sum justly due to the plaintiff by the absconding debtor, after giving him credit for all payments and claims which might be set off or lawfully claimed by the debtor at the time of making the affidavit, and the execution shall be endorsed to levy the sum so sworn to with the taxed costs, or the amount of the judgment including the costs, whichever is the smaller sum of the two. R. S. O. 1877, c. 68, s. 9.

BAIL.

allow defend.

10. The Court or a Judge at any time before or after final Court may judgment, but before execution executed, upon an application ant to put in supported by affidavits satisfactorily accounting for the defen- special bail. dant's delay and default and disclosing a good defence on the merits, may, having regard to the time of the application and other circumstances, let in the defendant to put in special bail and to defend the action. R. S. O. 1877, c. 68, s. 10.

may be let in

to defend.

11. The special bail (whether put in within the time Defendant limited by the writ or within such time as the Court or a Judge 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 defend, and the action shall proceed as in ordinary cases. R. S. O. 1877, c. 68, s. 11.

Defendant's

property to be

restored on bail

12. Upon the defendant so putting in and perfecting special bail, all his property, credits and effects attached in that action being put in. (excepting any which may have been disposed of as perishable, and then the net proceeds of the goods so disposed of), shall be restored and paid to him unless there be some other lawful ground for the Sheriff to withhold or detain the same. 1877, c. 68, s. 12.

Sheriff to

attach all the property and credits of defendant.

Inventory to be made.

R. S. O.

WHAT PROPERTY MAY BE ATTACHED.-INVENTORY, ETC.

13. All the property, credits and effects of an absconding debtor, including all rights and shares in any association or corporation, may be attached in the same manner as they might be seized in execution; and the sheriff to whom a writ of attachment is directed shall forthwith take into his charge all such property and effects according to the exigency of the writ, and shall be allowed all necessary disbursements for keeping the same, and he shall immediately call to his assistance two substantial freeholders of his county, and with their aid he shall make a just and true inventory of all the personal property, credits and effects, evidences 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. R. S. O. 1877, c. 68, s. 13.

Sale of perishable goods on plaintiff giving security.

PERISHABLE PROPERTY.

14. In case horses, cattle, sheep, pigs, or perishable goods or chattels, or such as from their nature (as timber or staves) cannot be safely kept or conveniently taken care of, are taken under a writ of attachment, the sheriff who attached the same shall have them appraised and valued, on oath, by two competent persons; and in case the plaintiff desires it and deposits with the sheriff a bond to the defendant executed by two freeholders (whose sufficiency shall be approved of by the sheriff), in double the amount of the appraised value of the articles, conditioned for the payment of the appraised value to the defendant, his executors or administrators, together with all costs and damages incurred by the seizure and sale thereof, in case judgment is not obtained by the plaintiff against the defendant, then the sheriff shall proceed to sell all or any of such enumerated articles at auction, to the highest bidder, giving not less than six days' notice of the sale, unless any of the articles are of such a nature as not to allow of that delay, in which case the sheriff may sell such Sheriff to hold articles last mentioned forthwith; and the sheriff shall hold the proceeds of the sale for the same purposes as he would hold property seized under the attachment. R. S. O. 1877 c. 68, s. 14.

proceeds.

be restored if

15. If the plaintiff, after notice to himself or his solicitor of The goods to the seizure of any articles enumerated in the last preceding plaintiff fails section, neglects or refuses to deposit the bond, or only to give suffioffers a bond with sureties insufficient in the judgment of the cient security. sheriff, then, after the lapse of four days next after the notice, the sheriff shall be relieved from all liability to the plaintiff in respect to the articles so seized, and the sheriff shall forthwith restore the same to the person from whose possession he took such articles. R. S. O. 1877, c. 68, s. 15.

WHEN DIVISION COURT ATTACHMENT SUPERSEDED.

of a Division

16. If the sheriff to whom a writ of attachment is delivered Proceeding if for execution, finds any property or effects, or the proceeds of Sheriff finds property in the any property or effects which have been sold as perishable, hands of a belonging to the absconding debtor named in the writ of Bailiff or Clerk attachment, in the custody of a constable or of a bailiff or Court. clerk of a Division Court by virtue of a warrant of attachment issued or money paid into Court under a garnishee summons under The Division Courts Act, the sheriff shall demand

and take from the constable, bailiff or clerk, the property or Rev. Stat.c.51. effects, or the proceeds of any part thereof and the constable, bailiff or clerk, on demand by the sheriff and notice of the writ of attachment, shall forthwith deliver all the property, effects and proceeds aforesaid to the sheriff, upon penalty of forfeiting double the value of the amount thereof, to be recovered by the sheriff, with costs of suit, and to be by him accounted for after deducting his own costs, as part of the property and effects of the absconding debtor; but the Creditor in creditor who has duly sued out the warrant of attachment may Division Court proceed to judgment against the absconding debtor in the may proceed to judgment. 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 Division Court, the creditor shall be entitled to satisfaction in like manner as, and in ratable proportion with, the other creditors of the absconding debtor who obtain judgment as hereinafter mentioned. R. S. O. 1877, c. 68,,s. 16; 48 V. c. 15, s. 2.

SHERIFF'S COSTS.

17. The costs of the sheriff for seizing and taking charge Sheriff's costs of property, credits and effects under a writ of attachment, and how paid. including the sums paid to persons for assisting in taking an inventory, and for appraising (which shall be paid for at the rate of $1 for each day actually required for and occupied in making the inventory or appraisement) shall be paid in the first instance by the plaintiff, and may, after having been taxed, be recovered by the sheriff by action in any Court having jurisdiction, and such costs shall be taxed to the party who pays the same as part of the disbursements in the action against the absconding debtor, and be so recovered from him. R. S. O. 1877, c. 68, s. 17.