(D) [Title of the Court.] Between A. B., Primary Creditor; and 1 C. D., Primary Debtor; and E. F., Garnishee. The said primary creditor claims from the said primary debtor the following or annexed account, [giving the amount or claim in detail.] You, the above named primary debtor, are hereby summoned to appear in the Supreme Court (or the County Court for the County of ) within twenty days after service upon you of this summons, exclusive of the day of such service, [if in any Court other than the Supreme or County Court on a day to be fixed by the Judge], to answer the above named primary creditor, who sues you for the recovery of the annexed or above written) claim. And you, the above named garnishees, are required to appear in the Supreme Court (or the County Court for the County of ) within twenty days after service upon you of this summons, exclusive of the day of such service, [if in any Court other than the Supreme or County Court, on a day to be fixed by the Judge], to state and shew whether or not you owe any and what debt to the said primary debtor,and why you should not pay the same into Court or to the said. primary creditor, to the extent of his claim, in satisfaction thereof. You and all others interested may also shew any cause why the debt owing from the said garnishee should not be paid and applied to satisfy the said claim of the said primary creditor. Witness, &c., [the date of issue.] (E) [Tille of the Court.] Between A. B., Primary Creditor; and 1 E. F., Garnishee. On hearing all parties, (or the parties appearing, the above named C. D. or E. F. having made default, although duly summoned), and it appearing that the above named primary debtor is indebted to the above named primary creditor in of the sum of $ , it is adjudged that the garnishee, E. F. is indebted to the said primary debtor in the sum of $ now due (or becoming due as follows), which (or $ which) ought to be paid and applied in satisfaction of the claim of the said primary creditor,and which it is adjudged that the primary creditor do recover against the said garnishee, for levying whereof, éxecution may issue at any time, (or, if the debt be not due,a time for payment be given, add "after days from this date,") unless the said garnishee shall sooner pay the said money into Court or to the primary creditor, to satisfy his said claim, Dated this day of A. D. 18. (F) In the Supreme Court, or County Court for the County of Between A. B., Primary Creditor; and 1 C. D., Primary Debtor; and E. F., Garnishee. Amount adjudged due from the primary debtor to the primary creditor on the day of A. D. 18 Amount adjudged to the primarycreditor for moneyowing from the garnishee the [L. S.] VICTORIA, &c. day of To the Sheriff of the County of 18,$ You are hereby required to levy of the goods and chattels, lands and tenements [omit the words "lands and tenements" where execution out of such Court cannot be levied on lands and lenements] of the above named garnishee, $ , money owing from him to the above named primary debtor, and which has been adjudged to the above named primary creditor to satisfty his said claim against the primary debtor; and what you shall have done herein return with this writ immediately on the execution hereof. Witness the Honorable J. C. A., Chief Justice, &c. (G) [Title of the Court.] Between A. B., Primary Creditor; and C. D., Primary Debtor; and E. F., Garnishee. Amount adjudged due from the primary debtor to the primary creditor the day of A. D. 18 Amount adjudged to the primarycreditor for moneyowing from the garnishee the day of A. D. 18, $ To the Sheriff of the County of You are hereby required to levy of the goods and chattels, lands and tenements [omit "lands and tenements" where execution out of such Court cannot be levied on lands and tenements] of the above named garnishee, $ money owing from him to the above named primary debtor, and which has been adjudged to the above named primary creditor to satisfy his said claim against the primary debtor; and what you shall have done herein return with this writ immediately on the execution hereof. Witness the Honorable J. C. A., Chief Justice. 16 When arbitration not conclusive. Notice of appointment of Trustees 18 Debtor's estate vests in Trustees. Concealing effects of debtor punishable; how. 5 Sheriff taking property by mis- 19 take; proceedings. 6 Decision of jury,when conclusive. 20 7 Notice to be given. Perishable 21 property. Reward for discovering same. Powers of Trustees as to accounts and disputes. 8 Paying debts after notice, &c., 22 Trustees to realize on estate. effect of. 9 When transfer void. 10 Petition by debtor; proceedings. 14 Judge may allow arbitrators fur- Meetings, dividends, &c. 24 Rights of foreign creditors. 27 Construction of word "Judge." Schedule. 1. If any person indebted in the sum of fortydollars above all discount, shall depart from or keep concealed within this Province, with intent to defraud his creditors, the creditor may make the affidavit (A); the departure or concealment of the debtor to be verified by affidavit under oath of two witnesses to the satisfaction of a Judge, or Commissioners, whereupon he shall forthwith issue his Warrant (B) to one or more of the Sheriffs; and any such Sheriff to whom it shall be delivered, shall forthwith execute the same, and deliver the property or the proceeds of what may be sold to the Trustees, and the warrant on delivery to the Sheriff shall have the like priority as any execution on a judgment in the Supreme Court. The Supreme Court. without fee, may appoint for every County two or more Commissioners, who shall be sworn to perform their duty, the oath to be endorsed on the Commissioner (C), and any two of whom may, in the absence of a Judge, receive the application by affidavit, and issue the warrant in the name of a Judge, with the same effect as if issued by him. The Commissioners issuing the warrant shall forthwith transmit the examination and proof to such Judge, with a memorandum of the date of its issue. 3. The estate of any person indebted as aforesaid, departing from or residing out of the Province after the debt was contracted, and after an absence of six months next preceding the application, may be proceeded against by the creditor, or his attorney, in like manner as nearly as possible as absconding or concealed debtors, except that such departing or absence may be proved by one witness, 4. The Judge shall file the affidavit within thirty days after the taking thereof, and the warrant and return thereon within the like time after such return, with the Clerk of the Court out of which the warrant issued, who shall mark on the affidavit and warrant the time of filing each respectively. 5. If any such Sheriff shall through ignorance take property claimed by any other person, he shall summon a jury of seven persons to try the right thereof, and shall deliver the property according to the verdict, and in such case shall not be liable to any prosecution for the taking; the costs and charges to be paid by the Trustees out of the estate of the debtor, on the certificate of a Judge, if the jury find the property in the claimant. If the verdict be otherwise, the Trustees shall recover their costs, charges and expenses from the claimant, by an action at law. 6. The decision of the jury shall be conclusive, unless the unsuccessful party shall within six days after the inquisition, give notice in writing to the Sheriff to the contrary, and shall commence his action within three months. Such inquisition shall be returned under the hands of the Sheriff and jury taking the same, and by him filed in the Court out of which the warrant issued. 7. The Judge who issues the warrant shall immediately thereafter order Notice (D) to be given in the Royal Gazette, and may direct all perishable property seized to be sold, and the proceeds paid over to the Trustees when appointed, to be applied to the benefit of the estate. 8. If any person indebted to or having the custody of any property of an absconding, concealed, or absent debtor, shall after the first public notice as aforesaid, pay any debt, or deliver any such property to any person but the Trustees, he shall be deemed to have acted fraudulently, and shall be liable to answer the same, or the value thereof, to the Trustees when appointed, for the benefit of the estate; and if any such person be sued by the debtor, or by his procurement, he may plead the general issue and give the special matter in evidence. 9. After such public notice all sales and conveyances, powers of attorney, and all other acts by such debtor affecting such estate, shall be void. 10. Before the appointment of Trustees, the debtor may by Petition (E), apply to the Judge who issued the warrant, verifying the same on oath, who may make an order directing the parties and their witnesses to appear before him, that he may hear and determine the matter in a summary way. If any witness neglect to appear, on proof of the service of the order and payment or tender of his expenses, the Judge may grant an attachment (F) against him; upon hearing the parties he shall grant a supersedeas of the warrant or dismiss the application, and he may award costs to the successful party, to be recovered by attachment. If he grant the supersedeas, and certify that there was probable cause for the proceeding, and no malice, the same shall be a bar to any action against the creditor. |