Debtors, attachment of (1842) (WA)

WESTERN AUSTRALIA.

ANNO SEXTO

VICTORIA, REGIN}E.

No. IV.

An Act to facilitate actions against Per- sons absent from the Colony, and against Persons sued as Joint Contractors.

viTHEREAS it is expedient that the existing Laws relative to Preamble. the sueing absent parties, and_to the.proceedings against Joint

just claims it therefore enacted by His .Excellency the Governor Contractors, should be allered,so as to facilitate the prosecution a

6th Victories, No. 4. 1842.

On return of non est in-

ventus, and on affidavit	of Western Australia, -with the advice of the Legislative Council
filed, &o., Plaintiff may	thereof, that in every action at law which shall he hereafter commen-
proceed against an absent
defendant by Foreign At-	ced in the Civil Court of Western A ustralia, wherein the Writ of
tachment.	Summons shall (as to any Defendant named therein) be returned non est iuventus, if upon or after any such return an affadavit shall be filed on behalf of the Plaintiff that the cause of action arose within the said Colons', and that to the best of the deponent's belief such de- fendant does not reside v6ithin the said Colony, and is to the best of deponent's belief possessed of, or entitled to, or otherwise beneficially interested in any lands, monies, securities for money, chattels, or other property in the custody or under the control or any person or persons in the said Colony (to be named in such affidavit), or that any such person or persons is or are indebted to such defendant, the plaintiff may proceed against such defendant by process of Foreign Attachment in the manner hereinafter directed—Provided that by leave of the Commissioner of the said Civil Court (where it shall ap- pear that plaintiff may sustain injury by the delay), such affidavit may be filed before the return of such Writ of Summons.

Form of Attachment, and II

how served, AND be it enacted, that at any time after the filing of such affidavit as aforesaid, a writ of Foreign Attachment may be issued at the plaintiff's instance, as of course, and every such writ shall be in such form as the Civil Court shall prescribe, and be returnable in the said Court on some day not less than fourteen clays, nor more than sixty days, next after the date thereof, and shall be served upon the several Garnishees or persons therein named, in whose hands it is intended thereby to attach any such monies, lands, chattels or debts, by delivering a copy thereof to each such Garnishee personally—

Proviso, as to proof of Provided always, that final judgment shall in no case be signed in where cause of action ac- any such action until an entry shall have been made on the recordcruse.

of the issue of such Writ of Attachment, with a suggestion of the fact that the cause or causes of action so rose as aforesaid, and in case it shall at any time appear that the cause of action did not arise within the said Colony, the attachment shall be forthwith dissolved with costs to be paid by the plaintiff to such parties, and in such manner as the Court saall direct.

Public notice to be given. III. AND be it enacted, that in addition to such service, the

plaintiff shall also cause a notice of the issue of such Writ, signed by him or his attorney, to be published in three successive Government Gazettes, and every such notice shall be in such form as the Court shall direct, and the last of such publications thereof shall be one

J842. 6th Victoria, No. 4.

week at the least before the day on which the Writ of Attachment

shall be made returnaule.

IV.     AND be it enacted, that from the time of the service of the Property and debtsbound

Writ upon any such Garnishee or person as aforesaid, all and singu-	=p	c time	attachment
lar the lands and other hereditaments, monies and chattels, bills, bonds, arid other property of whatsoever nature, in the custody, or un- der the control, of such Garnishee, then belonging to the defendant against whom such writ issued, or to or in which such defendant shall then be legally or equitably entitled or otherwise beneficially interested (and whether solely or jointly with any person or persons), and all debts of every kind then due by any such Garnishee to such defendant, although the same or part thereof may be payable only at a future day, shall to the extent of such defendant's right, title and interest therein respectively, be attached in the hands of such Garni- shee, and (subject to any bona fide prior claims on liens thereon) be liable to the satisfaction of the particular demand or cause of action of which he or she shall Sy the same Writ have had notice, and if any such Garnishee or person; without the leave of the Court, shall at any time after such service, and before the said Attachment shall be dissolv- ed, sell, or otherwise knowingly dispose of, or part with, any such pro- perty, or pay over any such debt, or any part thereof, excepting only to, or to the use of, the plaintiff in such writ, he or she shall, upon the application in a summary way of such plaintiff to the Court, and Gn proof of the Cacti, pay such damages to the plaintiff as such Court shall in that behalf think fit to order.

V.     AND be it enacted, that upon the return of every such Writ Inquiry as to property

of Attachment as aforesaid, or as soon after as conveniently may be, in Garnishee 's henna.

and upon such other day or days of adjournment, if any, as"shall in

that behalf be directed, the said Court shall proceed to enquire and

determine whether in fact the plaintiff's cause of action arose within

the said Colony, and if so,then what lands, monies, chattels and other

property as aforesaid (sufficient, or not more than sufficient, to satis-

fy the plaintiff's cause of action, together with his costs of snit), than

are, or were at the time of the service of the said Writ, in the custody,

or under the control, of any such Garnishee or person as aforesaid,

belonging to the defendant, or to or in which he was at that time en-

titled or interested as aforesaid, and what debts were then due to such

defendant from any such Garnishee or person, and the particulars

thereof, and whether such lands,4,mouies, and other property and

debts, or any part or parts thereof, are or can be made available for

6th Viet. No. 4. 1842i

the purpose of making such satisfaction as aforesaid, and to what amount respectively, and for the purposes of such inquiryand defer- ruination, it shall be lawful for the said Court in a summary way to examine, or permit the said plaintiff to examine viva vow upon oath every such Garnishee or person, together with such witnesses (if any) as the said Court may think proper to be so examined, and Mr that purpose to make such orders, and issue such summonses to the sev- eral Garnishees, and to any witness or witnesses, as may in that

Attendance of parties.

behalf be deemed expedient; and any such Garnishee or person as aforesaid, or witness, who shall refuse or neglect to attend according to the exigency of any such Writ of Attacha: era, or to obey any such order or summons, or shall refuse to be so examined, shall be liable to be summarily proceeded against as in cases of contempt of Court, and to be punished accordingly—Provided always, that in any case where it shall appear under the circumstances to be reasonable or just so to do, it shall be lawful for the Court to dispense with the attendance of any such Garnishee upon his submitting to be examined upon oath before the Commissioner of the Court, or 8pon such other terms as such Court shall impose; and where any such Garnishee shall attend in obedience to any such Writ or Summons, it shall be lawful for the Court to award him the reasonable expenses of such attendance,

to be paid by the plaintiff.

Disposal of good; &c., VI. AND he it enacted, that if any such Garnishee or person, in

by leave of Court: whose hands any such lands, goods, or property or debts as aforesaid

shall have been so attached, shall be desirous of disposing of the same,or any part thereof-Cor of receiving or paying (as the case may be) the amount of any bill, bond, debt, or other chose itt action, or any part thereof, pending such Attachment, and shall apply for that purpose to the Court, it shall be lawful for the said Court (due notice having been given to the plaintiff of such intended application) to authorise such Garnishee or person to sell or dispose of such property, or to receive or pay any such amount, and the proceeds of such sale or disposal, or the amount so received or paid (as the case may be) shall thereafter be held by such Garnishee or person, or be paid into Court, or invested, or otherwise be detained or appropriated, subject to such attachment as aforesaid or otherwise, for the satisfaction of the plaintiff, as such Court shall think fit to order.

VII. AND 5e it enacted, that at any time after the *return flay tif

any such Writ of Attachment, it.shall be lawful for the 'Plaintiff to

proceed thereon in the action as if such defendant resided in the Cos

1842.             6th Victorim, No. 4.

bony aforesaid, and had appeared to such action in -person--Provided that such bond as is hereinafter in that behalf prescribed shall have been first duly entered into.

VIII.      AND be it enacted, that so soon as upon any such exami- Court to determine who,

property is to continuo

nation or enquiry as aforesaid, it shall be ascertained by the Court

subject to attachment.

what lands, monies, or other such property and debts as aforesaid, can (consistently with existing liens or prior claims thereon, to be de- termined by the said Court) be made available for the purpose of making satisfaction to the plaintiff as aforesaid, the said Court shall forthwith order the same (or such part or parts thereof respectively as such Court shall think proper in that behalf) to be thenceforward holden for that purpose, and to continue subject to such Attachment accordingly, or to be sold or otherwise disposed of, if such Court shall think fit, and the proceeds, or (in case of debts then payable) the a- mount of such debts to be paid into the hands of some Officer of the Court, subject to such Attachment as the said Court may order ; and with respect to all aid singular the lands,monies, and other property, debts, and other choses in action, to which no such order as aforesaid

shall be intended to apply, or as to which no such order can be made, Proviso as to any second

it shall be lawful for the said Court at any time to direct that the writ.

said Attachment shall be dissolved—Provided always, that where

more than one Writ of Attachment shall have issued against the

same Garnishee or person, or the same property shall have been at-

tached at the suit of more than one plaintiff, it shall be lawful for the

said Court to award and determine how much, and what parts of the property so attached, or to what amount in value thereof; shall be retained or holden under each of such writs, or be paid into Court, or disposed of (as the case may be) for the separate benefit of each plaintiff; and as to Writs lodged with the Sheriff on the same day, the plaintiffs therein shall be entitled to satisfaction pari passu, but if any of such Writs shall have been so lodged with the Sheriff on different days, the plaintiffs shall be entitled to satisfaction respec- tively, according to the priority of each in such lodgment.

Plaintiff enter in to a

IX. AND be it enacted, that within fourteen days next after any bond to ato ccount, 84e.

such writ of attachment shall have issued as aforesaid, the plaintiff at whose suit the same shall have been issued, or if absent,some person on his behalf, shall, before the Commissioner of the said Court, enter into a Bond, with two sufficient sureties to he approved of by such Commis- sinner, acknowledging himself and themselves to be indebted to the Defendant against whom such Attachment shall have so issued in

6th Victoriie,. No. 4. 1542:

such sum as the Court shall think fit to order, conditioned amongst other things to repay all such sums as the Plaintiff shall realize in. the actionoin case the judgment therein shall be thereafter vacated,j reversed, or altered, together with all costs sustained by the Defend- ant, which said Bond and condition shall be in such Form as the said Court shall prescribe; and in case of any breach, or alledged breach- of such condition, the defendant shall be at liberty to sue the parties to such Bond thereon, at any time, and if such Bond be not so. entered into as aforesaid, the Attachment shall be ipso facto dissol- ved.

After . judgment Plaintiff X. AND be it enacted, that at any time after such Bond shall

may issue Seri fad es. have been so entered into, and atter final judgment in favour of the,

Plaintiff shall have been obtained, it shall be lawful for him to cause. a Writ or Writs of Len facias upon such Judgment to be from time, to time issue d,as in any ordinary case for the amount of the delfts as damages and costs thereby recovered, and to cause to be taken in execution under any such Writ (as against an: Defendant whose, property shall have been so attached as aforesaid) not only all, or- any part of their lands, goods, mollies, and other property so attach- ed, and which shall then continue subject to such Attachment as aforesaid, in whose hands soever the same shall then be (and what- ever may be the nature of such property, whether ordinarially liable, to be taken in execution or not, and although the same or part thereof. may be of the nature of a chose in action), but also any other real or, personal property of the Defendant which the said Plaintiff shall then. be able to find, and to receive any such goods, monies, or property; in satisfaction, or part satisfaction, of such debts or damages, and, costs, at an amount to be fixed by the Sheriff, or to cause all such property (except as next mentioned) to. be sold under such Writ or' Writs as in ordinary cases ; Provided that with respect to any such

compelling payment of debt or chose in action as aforesaid, no sale or other disposition thereof - under attachment. debts due to defendant shall take place except by order of the Court, and upon the applica-.-

tion of the Plaintiff, it shall be lawful for the said Court at any time;- in summary manner, to authorize an action for the amount of anysuch debt, to be brought in the name of the Creditor, being such Defend- ant as aforesaid, or to cause the Debtor to be summoned to attend such Court to show why he should not forthwith pay the amount of such debt to such Plaintiff, and if no sufficient cause is shewn, to order such payment accordingly, and to enforce such order, together with all costs attending the same, by• an attachment for a-contempt

as in other cases.

1842Z 6th (Viet- nit:-

PROVIDED :always; and be it_enacted,-thatif Mdinglahy .1"rovision for dissolving Toretga attachment.

such Writ of Foreign Attachment as aforesaid, or atany time before. Final Judgment obtained in the action in which such Writ issued, the defendant against- whom sudh•Attachment shall have issued; or. any, person on his behalf, shall, before the Commissioner of the said Court, enter into a Bond with two sufficient sureties, acknowledging. himself and themselves to be indebted to the plaintiff in such sum as

the Court shall think fit to order, conditioned to pay the said plaintiff the amount of, such debt or damages and costs, as he shall at any, time thereafter recover in such action, then it shall .be lawful for such defendant or person entering into the said , Bond, to plead to, and., defend such Action, and upon givingnotice thereof to the said Plain-. tiff, to apply to the_ said Court by motion,•as of Course, that the said Attachment may,be'dissolved and the same shalt be dissolved accor- dingly; and the action shall thereupon proceed,t6 trial and judgment in the ordinary manner.

Provision enabling ab-

sent nnwngn

XII: AND be il ∎ enacted; that - if after any Final Judgment oh- tamed'as aforesaid, an affidavit shall be made by the Defendant against whom:such process of Foreign Attachment shall have issued as afore- said, that such Defendant had, at the : time of the obtaining-of the said Judgment, and still hath, a substantial -ground of defence . (ei- ther wholly or in part) to the plaintiff's action on the merits, and such affidavit (sworn as next, hereinafter mentioned) shall, at any, ■time	t	tiandingj	udgmentigaini	l
fore,the expiration'of three years next after-such Judgment, be filed in the -said , Court, then; upon motion 'thereupon for that purpose. made to the said-Court on behalf of the said defendant, and after due- notice- thereofigiven:tolhe said- plaintiff . (and , security being entered into for-the payment of all costs by him at any time thereby sustain- ed),it shall be lawful for the said Court to causethe merits so alledged: as-aforesaid to:be inqaited into and determined in such manner and: fermi either by:a .•eigned issue between the parties-or otherwise, andt at atieh timei ancl nndettermsand: conditions for the: purpose of se, caring; the-substantial ends 'of justice, as -to the said•Court shall seem; meet.; , thid, the said Courti, after.such , inquity.and -determination had, shalbthereupeia give stichijudgment in the matter, for the•teyersal of the judgment in_ the original; action, eitlier im the,whale,oriin
or ishalloar. lawfully may,..from time to ti meonake -such; orders in .then premises between the parties as the justice of the case shall appear-to: require, and every such judgment and order may at any time (if the - pa:air zsitc,ceediag; shall think;ffft), Isnggested (- upomonad:cled to the recorcbtof theorigMalaetiOniin!whIcbsuch,finativdgMent, shall ,havey been so obtained as aforesaid; and every such affidavit, if made within the said Colony, shall be sworn before the Commissioner, or some

6th Viet. No. 4. 1842.

Officer of the Court; or person authorized to take affidavits to be

used in the said Court -

Property in possession XIII. AND be it enacted, that the property of any such absent

of any co-defendants

Wife. defendant as aforesaid may, under the provisions of this Act, he attached and taken in the custody or power of the defendant's wife, or of any co-defendant, and that no process of Foreign Attachment against any such absent defendant, nor any lien intended to be thereby created upon the lands, monies, securities, debts and chattels, or other pro- perty of such defendant thereby attached, shall be defeated by reason of such co-defendant, or any other Garnishee as aforesaid, being, or claiming to be, jointly interested in such defendant therein either as partner or otherwise; and in all cases it shall be sufficient for the pur- poses of this Act to attach property in the hands of the person or persons having the actual care, custody, or control thereof for the time being.

Provision in case of ab- XIV. PROVIDED always, and be it enacted that in all casessent defendants sued as copartners. wherein two or more defendants shall be sued as copartners, and as to

any of such defendants there shall be a return of non est iuventus, but as

to any other of such defendants there shall be areturn of personal service, then if, at any time after such return, an affidavit shall be filed that, to the best of the deponent's knowledge and belief, the defendant sued did in fact, when the cause of action accrued, carry on business in the said Colony, as a copartner jointly with the defendant or defendants as to whom there shall have been such return of non est inventus, and that such last mentioned defendant or defendants is or are absent from the Colony, it shall be lawful for the plaintiff, at his option, to proceed against everysuch absent defendant in the manner next hereinaf- ter mentioned :—that is to say, upon the filing of such affidavit, or as soon after as conveniently may be, the plaintiff shall cause a notice to every such defendant, signed by himself or Attorney, to be pub- lished in the Government Gazette in such form as the Court shall for that purpose direct, requiring every such defendant to appear ; and if, on the day named in such notice (such day not being less than ten days next after the publication of the same in the said Gazette), such defendant shall not appear, the plaintiff may proceed as if he or they resided in the said Colony, and had appeared to the action in

person.

Similar provision where

defendants not sued as

copartners. XV. AND be it enacted, that the like proceedings may be had,

where two or more defendants shall be sued, although not as copart-

1842.                  6th Viet. No. 4.

ners (where there shall be such return as last aforesaid), upon, an affidavit by or on behalf of the plaintiff, that the cause of action .against all the defendants accrued within the said Colony, and that the defendant or defendants as to whom the return of non est inven- tus is trade, is or are absent from the Colony ; Provided that, in ad- .dition to the publication of such notice as aforesaid, the Plaintiff shall give security by bond to such an amount, and in such form, as the Court shall order, conditioned to repay all such sums as he shall re- cover-in the action against any such absent defendant, together with all costs sustained by such defendant in the premises, in case the Judgment therein against him shall afterwards be vacated, reversed, or altered, and every such defendant shall have the like remedy, and the same proceedings may be taken on his behalf for procuring the reversal of such Judgment, so far as the same affects such defendant,. as are hereinhefore provided with respect to defendants against whose property there shall have issued as aforesaid any Writ of Foreign Attachment.

weteerin shbipes n are rae n

XVI. AND whereas, in some cases, business is carried on in the omr ot

said Colony by persons in -copartnership, or by one individual or known.

°

more assuming the style of a copartnership, or acting as agent or agents for a copartnership, and in.sorne of those cases the names of the actual Members of such copartnership, or' of some of them, are or may be unknown ; and in order to prevent any failure of justice in such bases; Be it enacted, that every such copartnership, and the several Members thereof, or the persons or person having carried on business 'under the style of any such copartnership, may be stied in any action at law in the name or names of any one or more of the meinbers of such copartnership, on behalf of all the members composing the seine or in the name or names of any such agent or agents, for and on be- half of such copartnership, so as that in all cases wherein it would have been necessary, if this Act had not been passed, to Mention the name's of all the members composing any such copartnership, it shall be suit ficient to mention the name or names of such one or more member or members, or of such agent or agents in behalf of such copartnership, and every judgment obtained in any such action shall have the same effect and operation upon the property, both real and, personal, of such copartnership, and also upon the property and persons of the several members thereof, when- discovered, whether such property be joint or separate, as if every member of such copartnership had been actually and' in fait- a defendant in the action.

6th Victori, No. 4. 1842.

Proviso.

XVII PROVIDED always, and be it enacted, that in every SW11- mons and other Writ issued, and declaration or other pleading filed on behalf of the plaintiff, in any action brought under the provisions' uf the preceding section, the style or firm of the copartnership shall be specified, and it shall distinctly appear that the defendant sued is so sued either as a member or as agent for and on behalf of a copart- nership; And provided, also, that no agent sued on behalf of a copartnership shall, by reason only of his being so sued, be incOrn- petent as a witness in the action,on behalf either of the plaintiff or Of the copartnership, or be liable in person or in property to any judg- ment obtained in such action.

Where several are sued as

XVIII. AND be it enacted, that after the passing; of this Act, in the plaintiff shall be entitled to a judgment (or to a verdict and judg- ment, as the case may be) against such of the defendants as shall appear to be liable, although one or more of -the persons made a de- fendant or defendants shall appear not to be liable—Provided that in every such case the defendant or defendants not liable shall have judgment, and be entitled to costs against the plaintiff, and to the like remedy for the same as a defendant hath in any ordinary case.

contractors the ver-

joint dict may be against sonic all cases where two or more persons shall be sued as joint contractors,

of them only.

Attachment and execution XIX. AND be it enacted, that every writ of attachment upon

may be pleaded in bar.

which any order shall have been made as aforesaid, where the same shall have been followed by execution levied, may be pleaded in bar by any person or persons in whose hands any lands, goods, debts, or effects as aforesaid shall be attached, to any action brought by or on behalf of the defendant for the recovery of such property ; and if any, such action shall be brought pending the attachment, the same shall be stayed by order of the Court until the attachment shall be dissol- ved, or the proceedings thereupon be otherwise determined ; and in such plea it shall only be necessary to state shortly that such Writ of Attachment was issued, and to set out the substance of the order finally made thereupon, and then to allege that the property sought to be recovered was taken under a writ of execution issued after such order.

Act to extend only to ea- XX. AND be it enacted, that nothing in this Act contained shall in of contract.

extend to any action of trespass, or other action in tort @rover or de-

tinue excepted), but to actions on, or arising out of, contract only.

1842.               6th Viet. No. 4.

X'XI. PROVIDED always and be it enaeted, .that this Act shall Act not to apply for one

not be deemed or taken to apply to any action to be brought against, le

any person who shall have left the Colony previously to the passing to the passing of the Act.

of this Act until one year after the date hereof.

XXII.      AND be it enacted, that absence from the said Colony The term "absence?'

shall, for the purposes of this Act, be taken to mean absence for the time being, whether the party shall ever have been within the said Colony or not.

XXIII. AND be it enacted, that it shall be lawful for the Court, The Canoudrt mayd make

for the more satisfactory determination of any question of fact arising ands direct ajtars befeoorsetsa,

before such Court under this Act, to direct the trial of any feigned jury

Issue or Issues by a Jury, and for that purpose to make all necessary orders as to the form thereof, and who shall be parties therein and other- wise, and in all cases in which no provision, or no sufficient provision, is by this Act made, it shall be lawful for the Court from time to time, for the purpose of facilitating, or more effectually carrying into exe- cution, any of the objects of this Act (either upon any application in a summary way made for that pnrpose by or on behalf of any person interested in any matter by this Act intended to be provided for, or without any such application),to make and prescribe all such Rules and Orders, either general or applicable to any particular case only touching any of the matters intended to have been hereby provided for, and touching also the manner of proceeding before, or applying to, the Court, and also the execution of Writs and Orders, and the allowance and taxation of costs under this Act as-to the Court shall seem expedient, and such rules and orders from time to time to re- voke or alter, as to the Court shall appear to be requisite ; and all rules and orders so made and prescribed shall he of the same force and effect as if they had been inserted in this Act; and the said Court shall in all cases whatsoever of applications made to, or proceedings had or taken before or by authority of the said Court or otherwise under this Act, have full power to adjourn the case or proceedings from time to time, and in all cases to refuse or award costs, the same to be paid by and to such party or parties as the Court shall in each case think fit ro enter.

XXIV.      AND be it enacted, that this Act shall be and continue Duration of the Act.

in force for five years after the date of its passing the Legislative

Council.

6th Victoria3, No. 4. 1842.

Act may be amended. XXV. AND be it enacted, that this Act may be amended or re-

pealed by any Act to be passed during the present Session.-

"JOHN HUTT,"

GOVERNOR.

Passed the Councill

llth Aug., 1842.

EDWARD C. SOURER.

Acting Clerk of the Council.

Printed by authority of the Government, by E. Stirling, Printer.