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No. 5.–11 Vic. ch. 27. An Act to enable Courts of Law to give No. 5.
Relief against adverse Claims made upon Persons having no Act 11 Vic. interest in the subject of such Claims. (19th April, 1848.)
recovery of money or goods wherein he has no interest, and which are also claimed of him by some third party, has no means of relieving himself from such adverse claims but by a suit in equity, against the plaintiff and such third party, usually called a bill of interpleader, which is attended with expense and delay; for remedy whereof, Be it enacted, That upon application made by or on the On application behalf of any defendant sued in the Supreme Court of the Turks of defendant in and Caicos Islands, in any action of assumpsit debt, trover or Supreme Court, trespass, such application being made after declaration and before
or having no
interest in the plea (if by the practice of the Court required to be filed) by affi- suit, Court or davit or otherwise, showing that such defendant does not claim any Judge may call interest in the subject matter of the suit, but that the right thereto on the person
interested to is claimed or supposed to belong to some third party who has sued
appear. or is expected to sue for the same, and that such defendant does not in any manner collude with such third party, but is ready to bring into Court or to pay or dispose of the subject matter of the action, in such manner as the Court or any Judge thereof may
order or direct, it shall be lawful for the Court or any Judge thereof, to make rules and orders, calling upon such third party to appear and state the nature and particulars of his claim, and maintain or relinquish his claim, and upon such rule or order to hear the allegations, as well of such third party as of the plaintiff, and in the mean time to stay the proceedings in such action, and finally to order such third party to make himself defendant in the same or some other action, or to proceed to trial on one or more feigned issue or issues, and also to direct which of the parties shall be plaintiff or defendant on such trial, or, with the consent of the plaintiff and such third party, their counsel or attorney, to dispose of the merits of their claims, and determine the same in a summary manner, and to make such other rules and orders therein as to costs and all other matters as may appear to be just and reasonable.
II. That the judgment in any such action or issue as may be Decision of directed by the Court or Judge, and the decision of the Court or Court or Judge
final. Judge in a summary manner, shall be final and conclusive against the parties, and all persons claiming by, from, or under them.
III. That if such third party shall not appear upon such rule or Penalty on order to maintain or relinquish his claim being duly served there
third parties with, or shall neglect or refuse to comply with any rule or order to
not appearing. be made after appearance, it shall be lawful for the Court or Judge to declare such third party, and all persons claiming by, from, or under him, to be for ever barred from prosecuting his claim against the original defendant, his executors or administrators ; saving, nevertheless, the right or claim of such third party against the plaintiff
, and thereupon to make such order between such defendant and the plaintiff as to costs and other matters as may appear just and reasonable: Provided always, That every order to be made in pursuance of this Act by a single Judge of the said Supreme Court, not sitting in open Court, shall be liable to be rescinded or altered by the said Court, in like manner as other orders made by a single
No. 5. Judge. Provided also, that if upon application to a Judge of the Act 11 Vic. said last-mentioned Court in the first instance, or in any later stage
of the proceedings, he shall think the matter more fit for decision of the Court, it shall be lawful for him to refer the matter to the Court; and thereupon the Court shall and may hear and dispose of the same in the same manner as if the proceeding had originally
commenced by rule of Court instead of the order of a Judge. Protection to IV. And whereas, difficulties may arise in the execution of proProvost Mar- cess against goods and chattels issued by or under the authority of shal and con- the said Courts, by reason of claims made to such goods and chatstables.
tels by assignees of bankrupts and other persons not being the parties against whom such process has issued, whereby the Provost Marshal and other officers are exposed to the hazard and expense of actions, and it is reasonable to afford relief and protection in such cases to such Provost Marshal and other officers; Be it, therefore, further enacted, That when any such claim shall be made to any goods or chattels taken, or intended to be taken in execution under any
such process, or to the proceeds or value thereof, it shall and may
be lawful to and for the Court from which such process issued, or any Judge thereof, upon application of such Provost Marshal or other officer, made before or after the return of such process, and as well before as after any action brought against such Provost Marshal or other officer, to summon by rule of Court or order, as well the party issuing such process as the party making such claim, and thereupon to exercise for the adjustment of such claims and the relief and protection of the Provost Marshal or other officer, all or any of the powers and authorities hereinbefore contained, and make such rules and decisions as shall appear to be just, according to the circumstances of the case : and the costs of all such proceedings shall be in the discretion of the Court or
Judge. Proceeding to V. That all rules, orders, matters and decisions to be made and be entered of
done in pursuance of this Act, except only the affidavits to be filed, record.
may together with the declaration in the cause (if any), be entered of record, with a note in the margin, expressing the true date of such entry, to the end that the same may be evidence in future times, if required, and to secure and enforce the payment of costs directed by any such rule or order, and every such rule or order so entered, shall have the force and effect of a judgment, and in case any costs shall not be paid within fifteen days after notice of the taxation and amount thereof given to the party ordered to pay the same, his agent or attorney, execution may issue for the same adapted to the case, together with the costs of such entry, and of the execution; and
such writ and writs may bear teste on the day of issuing the same, Fees,
and the Provost Marshal or other officer executing any such writ shall be entitled to the game fees and no more as upon any similar writ grounded upon the judgment of the Court.
No. 6. Ord. No. 1,
No. 6.-ORDINANCE No. 1 of 1852.
No. 7.-ORDINANCE No. 9 of 1852.
Ord. No. 9, An Ordinance to consolidate and amend the Laws relating to the 1852.
Superior Court of Justice. (Passed 28th Oct. 1852. As
sented to 1st Aug. 1853.) HEREAS, it has become expedient and necessary that the PREAMBLE.
tion of the Superior Court of Justice of these islands should be amended and consolidated : May it, &c.
I. That the Court heretofore known in these islands by the style and title of “The Court of Criminal Justice and Common Pleas for the Parishes of St. Thomas and St. George,” shall, from and after the allowance of this Ordinance, be known and designated as The Supreme Court of the Turks and Caicos Islands,” and the same is hereby established as a Court of Record by the aforesaid style and title of “ The Supreme Court of the Turks and Caicos Islands,” Style and Title. and is hereby invested with all the powers, properties, rights, superintendence, force, effect, jurisdiction, authorities, pre-eminence, and advantages which belong to, and are used, enjoyed, and in any manner practised by the Courts of Queen’s Bench, Common Pleas, Its jurisdiction Exchequer, Oyer and Terminer, and General Gaol Delivery in defined. England ; which said Court shall be held at Grand Turk by Her Majesty's Judge, appointed for the Turks and Caicos Islands for the time being four times annually, that is to say on the third Tuesday in February, the third Tuesday in May, the third Tuesday When to be
holden, in August, and the third Tuesday in November, in each and every year: and that the said Supreme Court shall have and use, as occasion may require, a Seal bearing a device and impression of the “Royal Arms" within an exergue or label, surrounding the same with this inscription, “ The Seal of the Supreme Court of the Turks and Caicos Islands," which said seal shall be delivered to and kept by the Prothonotary of the said Court; and the same Powers of the powers and authorities are hereby given to the Judge aforesaid to Judge. all intents and purposes whatsoever, as are held, enjoyed, and exercised by the Judges of the Courts of Queen's Bench, Common Pleas, and Exchequer in England, and he is hereby authorized, empowered, and required, to take cognizance of, and hold all pleas, in all manner of causes, suits, and actions, whether civil or criminal, as fully and amply to all intents and purposes as the Judges of the said Courts of Queen's Bench, Common Pleas, and Exchequer, in England, can, may, or ought to do; and he is hereby empowered and required, from time to time to make all such general rules and orders for the effectual execution of this, Ordinance and of the intention hereof, and for the practice of the said Court, as may be necessary and expedient for the better conducting the same: Provided, that such rules and orders are not repugnant to this Ordinance, and as nearly as conveniently may be made agreeably to the rules of practice now, or hereafter to be established in the Common Law Courts of Westminster Hall.
II. That the process for the commencement of all personal Process for the actions shall be according to the form contained in the Schedule to commencement this Ordinance annexed, and marked No. 1, and shall be called a writ
No. 7. of summons ;* and such writ shall be issued by the officer of the Ord. No. 9, said Court, by whom process hath been heretofore issued; and 1852. every such writ issued under the authority and by virtue of this
Ordinance, shall be served at Grand Turk, by the Provost Marshal or his Deputy, and at any other island or district of the Presidency by the stipendiary or other constable of such island or district, who are hereby invested within their respective districts with the authority of Bailiffs, for the service and execution of all writs, or other process issuing out of the said Court, and every such writ or process, when served or executed, shall be indorsed by the Provost Marshal or his deputy, or the bailiff aforesaid, with the day of the month † upon which the same was so served or executed : Provided however that no writ or other process, except subpæna writs, shall be sent for service or execution to any such bailiff unless the Provost Marshal shall first certify thereon, in writing, that he has
declined to serve or execute the same. Amount of III. That upon every writ of summons or capias, served for the claim and costs recovery of any debt, the amount of the debt shall be stated, and to be iudo, sed
the amount of what the plaintiff's attorney claims for the costs of on every Summons or Capias.
such writ, or process, arrest, or copy and service, and attendance to receive debt and costs; and that upon payment thereof within four days to the plaintiff or his attorney, further proceedings will be stayed; but the defendant shall be at liberty, notwithstanding such payment, to have the costs taxed; and if more than onesixth shall be disallowed, the plaintiff's attorney shall pay the
costs of taxation. Date and test IV. That, every writ issued by authority of this Ordinance, shall of writs.
bear date on the day on which the same shall be issued, and shall be tested in the name of the Judge of the said Court, or, in case of a vacancy of such office, in the name of the person duly appointed to act in that capacity, be sealed with the seal of the said Court, and signed by the Prothonotary, and shall be indorsed with the name of the attorney in whose name such writ shall be taken out; but, in case no attorney shall be employed for that purpose, then with a memorandum expressing that the same has been sued out by
the plaintiff in person, or by his duly authorized agent, or agents. Non bailable V. That, where no bail is required, or ordered, the defendant, Process, how
or defendants, shall be personally served by the Provost Marshal, served.
or other Officer, with a copy or copies of the writ, or process, issued against such defendant, or defendants, on which copy, or copies, there shall be indorsed in addition to the indorsements on the writ, a notice of the intent, or meaning, of such service, which notice shall be in the form contained in the Schedule aforesaid, marked No. 1.1
VI. Repealed by Ord. No. 9, 1855, sect. 9. Mode of pro
VII. And whereas, from the want of a process of outlawry, creceeding in Joint Bonds
ditors may be put to great inconvenience in the recovery of joint &c. one or
debts due them by persons, some of whom reside within these more of the islands, and some in other countries ; Be it therefore ordained, parties being absent.
* The form of the writ is altered by Ord. No. 9 of 1855. See post, No. 9 of this Class,
† The day of the week must also be indorsed. See Common Law Procedure Act, 1852, sect. 15.
I So much of Sect. 5 is repealed by Ord. No. 9 of 1855, Sec. 9, as refers to the notice on the Writ. See post, this Class, No. 9.
that, in all actions, or suits, hereafter to be brought, sued, or pro- No. 7. secuted, in the aforesaid Court, upon any joint bond, obligation, Ord. No. 9, promissory note, written acknowledgment, bill of exchange, or 1852. open account, in which any one, or more of the defendants, shall have been actually served with a writ or process whereby to compel his, her, or their appearance to such suit or action; and the Officer to whom such writ or process shall have been directed, shall return and certify that the other defendant, or defendants, therein named, is, or are, not resident within these islands, it shall and may be lawful for the plaintiff, or plaintiffs, to issue an alias writ, and the service of such alias upon any, or either, of the defendants, residents within these islands, as aforesaid, or if the Provost Marshal shall return that, such defendant, or defendants, are not to be found within his bailiwick, such service or return, shall be held good service upon such absent defendant or defendants; and that the plaintiff, or plaintiffs, may afterwards proceed either by default or otherwise, to judgment and execution, in such manner as if each of the defendants had been personally served with such writ or process.
VIII. And whereas, great injury may be done to creditors in Mode of proconsequence of their not being able to obtain judgments against ceeding against persons who have resided within these islands and removed there- persons who
are absent, from ; Be it therefore ordained, That, from and after the passing of this Ordinance, the leaving a copy, or copies, of process issued out of the aforesaid Court, at the last place of abode, or residence, of any defendant or defendants who are now, or hereafter may be, resident in these islands, and may depart therefrom, and be absent twelve calendar months, shall be deemed good service, and as effectual in law as if such defendant, or defendants, had been personally served with the copy, or copies, of such process within These islands : Provided, that, the plaintiff or some other person, shall make affidavit on the return of the said process that the defendant, or defendants, had been, and then was, or were, absent from this Government at least twelve months previous to the issuing of the same; and that the cause of action arose to the plaintiff
, or plaintiffs, previous to the departure of the said defendant, or defendants, from these islands.
IX. That, it shall be lawful in term time for the Court out of Rules and Orwhich any writ issued by authority of this Ordinance, or any writ of ders may be
» made for the “Capias ad satisfaciendum," "fieri facias,” or “venditioni exponas shall have issued, to make rules, and also for any Judge in vaca- Writs in vation to make orders for the return of any such writ; and every cation. such order shall be of the same force and effect as a rule of Court made for the like purpose : Provided always, that, no attachment shall issue for disobedience thereof until the same shall have been made a rule of Court.
X. That, if a plaintiff in any action in the said Court in which Bailable process the defendant is now liable to arrest, * (whether upon the order of how obtained. a Judge or without such order,) shall by affidavit of himself, or of some other person, show to the satisfaction of the Judge of the said Court that such plaintiff has a cause of action against the defendant, or defendants, cognizable in the said Court, and, that there
* The amount for which bail may be ordered is £10 and upwards, by Bahama Act, 8 Vic, c. 23, s. 4.