No. VII.
An Act for regulat ing Foreign At tachment in
| New South Wales. | [15th February, | 1832.] |
| WH E R E A S | j u s t demands by reason of the i r debtors not be ing for thcoming |
| Creditors | in | N e w Sou th W a l e s | f requent ly | lose | the i r |
a n d of the i r be ing no law to r egu la te t h e a t t a c h m e n t of the i r goods a n d debts in t h e h a n d s of other persons for remedy whereof Be it enacted by H i s Excel lency t h e Governor w i t h t h e advice of t he Legis la t ive Council Tha t whenever a n affidavit shal l be m a d e and filed in t h e Sup reme Cour t in due form as by law requi red by or on behalf of any plaintiff in any act ion commenced in t h e said Cour t for t he recovery of any debt or cer ta in money-demand and such affidavit shall fur ther set for th t h a t such debt or demand was cont rac ted or arose in N e w South W a l e s a n d t h a t t he plaintiff 's debtor is absent from t h e said Colony or keeps out of t h e way to avoid being served w i t h t he process of t h e said Cour t and t h a t t h e plaintiff h a t h reasonable g rounds for apprehend ing t h a t h is debt or demand wil l t he reby be endangered a n d t h a t such plaintiff h a t h t h e l ike g rounds for believing t h a t t h e defendant h a t h goods or effects in t h e possession or power of or h a t h a debt or debts due from some person or persons in t he said Colony who shall be par t i cu la r ly described in such affidavit it sha l l be lawful for t he said Cour t to issue a wr i t c o m m a n d i n g the Sheriff of N e w South W a l e s or his lawful depu ty for thwi th to a t t ach all goods effects and debts in t he h a n d s of all and every such person or persons named in such affidavit of a n d be longing or due and owing to t h e said plaintiff 's debtor and no twi th s t and ing such debts be payable
| a t a fu tu re t i m e and fur ther | c o m m a n d i n g | such | Sheriff | or his | depu ty |
t o s u m m o n all a n d every person or persons in whose h a n d s any such goods debts or effects shal l be a t t ached to appear before t h e said Cour t a t a cer ta in fu tu re day to be appoin ted by such Cour t a n d n a m e d in such wr i t to shew cause why t h e goods debts and effects so a t tached or so m u c h thereof as shal l be sufficient t o satisfy t h e plaintiff 's debt or demand should n o t be delivered to such plaintiff in satisfaction
thereof.
| 2. A n d | be i t fu r ther | enac ted T h a t | every such wr i t of | a t tach |
m e n t as aforesaid shal l be served u p o n the person or persons in whose possession or power any such goods or effects shal l be sworn as aforesaid to be or from w h o m such debt shal l be sworn to be due or in case such person or persons cannot convenient ly be served with such process t h e n by leaving a copy thereof a t h is or the i r usual place of abode a n d immedia te ly from a n d after such service all a n d every such goods debts a n d effects so a t t ached shal l be b o u n d
| i n law un t i l t he plaintiff 's | debtor or h is a t torney shall duly appear |
| and p u t in bai l to t h e said ac t ion or u n t i l t h e plaintiff 's | said | debt | or |
d e m a n d shal l be satisfied or t h e said a t t a c h m e n t dissolved a n d if any person or persons in whose possession or power any such goods or effects so a t t ached shall be or from w h o m any such debt m a y be due shall dispose of or pay over t h e same or any p a r t thereof before such appearance shal l have been duly entered a n d bail to t h e ac t ion p u t in or t h e plaintiff 's debt or demand shal l have been satisfied or t h e said a t t a c h m e n t dissolved t h e n every such person for his said default shall be l iable to m a k e satisfaction to t h e plaintiff ou t of h is p roper es ta te to t h e va lue of such goods debts a n d effects or in default thereof to be t a k e n in execut ion Provided however t h a t n o t h i n g in th i s L a w or Ord inance conta ined shal l be deemed or t aken to affect or a l ter any legal r i g h t or in te res t which any such person shall or m a y have to or in any such goods debts or effects so a t t ached in his or the i r h a n d s respectively.
3 . Prov ided also and be i t fu r ther enac ted T h a t if t h e person or
persons in whose h a n d s any such goods and effects shal l be a t t ached shal l be desirous of disposing of t h e same or any p a r t thereof pend ing such a t t a c h m e n t a n d shal l app ly for such purpose to t h e said Cour t
| or d u r i n g vaca t ion to any | J u d g e | a t Chamber s a n d shal l | give | due |
| not ice to plaintiff of such in tended appl ica t ion i t shal l be lawful for t h e said Cour t or J u d g e to au thor ize such person or persons to sell and dispose of any such goods or effects a n d to hold t h e proceeds of such | sale in | his | or | the i r | h a n d s | subject | t o | such | a t t a c h m e n t as aforesaid |
according as to such Cour t or J u d g e shal l seem fit.
| 4 . | A n d be i t fu r ther | enacted | T h a t if | a t | t h e | r e t u r n of t h e said |
| wr i t t h e said debtor shal l fail to appea r a n d | p u t | in | bai l | t o t h e ac t ion |
as aforesaid i t shal l be lawful for t h e said Cour t or pres id ing J u d g e to cause t h e plaintiff i n such act ion or in case of his absence beyond seas his lawful agen t to be sworn a n d examined in open Cour t t o u c h i n g t h e n a t u r e and origin of his said debt or demand a n d if such Cour t or J u d g e shal l be satisfied t h a t t h e same is j u s t l y due a n d is w i th in t h e in ten t ion a n d benefit of th i s L a w or Ordinance cause damages to be assessed for so m u c h of t h e said debt or demand as shal l be proved to j u s t l y due to such plaintiff or if no such debt or demand shal l be adjudged to be due t h e n to dissolve t h e said a t t a c h m e n t a n d u p o n t h e
| dissolut ion of any | such a t t a c h m e n t in any case t h e | same a n d | all |
| proceedings founded t h e r e u p o n shal l become of no fu r ther | effect. |
5. A n d be it fur ther enacted Tha t on t h e day appoin ted for
| t h e r e t u r n of such a t t a c h m e n t and summons | as | aforesaid | or | as | soon |
thereaf ter as shal l be appoin ted b y t h e Cour t t h e Cour t or J u d g e shall i n case any such debt or demand shal l be adjudged to be due as afore
said
said to t h e plaintiff proceed to enqui re whe the r t h e goods debts or effects so a t t ached do be long or are due to t h e plaintiff 's debtor a n d for such purpose a n y person in whose h a n d s any such debts or effects shal l have been a t t ached or w h o shal l have been s u m m o n e d
| to a t t e n d t h e Cour t as aforesaid | and shal l a t t end according to | such |
s u m m o n s shall be in te r roga ted a n d answer u p o n oa th all such quest ions as shall be p u t to h i m by t h e plaintiff and as shal l be allowed by t h e Cour t or J u d g e t o u c h i n g any goods debts or effects in his
| h a n d s which belonged or were due to such plaintiff 's | debtor a t t h e |
| t i m e | of | such a t t a c h m e n t so m a d e as aforesaid and if any such person |
shal l refuse or neglect t o a t t end t h e said Cour t or J u d g e a t t h e t i m e appointed (due service of t h e summons be ing proved upon oa th) or if any such person shal l a t t end b u t shal l refuse to be sworn or t o answer any such quest ion as aforesaid every such person shal l be l iable to be commit ted to cus tody a n d dealt w i th in l ike m a n n e r as witnesses who
| are gui l ty of con tempt of t h e said Cour t and t h e said Cour t or J u d g e in any such case m a y proceed to enqui re ex parte | t ouch ing such goods |
| debts a n d effects. |
| 6. A n d be i t fur ther enac ted T h a t if t he person in whose hands any such goods debts or effects shal l have been a t t ached shal l | confess |
| or if | after | due enqu i ry a n d examina t ion i t shal l be de termined by the |
Cour t or J u d g e t h a t t h e goods debts or effects or any pa r t thereof do be long or are due to such plaintiff 's debtor t h e Cour t shall order t he same to bo he ld subject and l iable to t h e plaintiff 's debt or demand and to he t a k e n i n execut ion for t h e same and if i t shal l be de termined by t h e said Cour t t h a t such goods debts or effects so a t t ached as aforesaid do no t nor doth any p a r t thereof be long no r are nor is due to such plaintiff 's debtor t h e n t h e said a t t a c h m e n t shal l be dissolved in respect of al l such goods debts and effects as shal l be de termined no t t o be long or be due to such plaintiff 's debtor Provided always t h a t if i t shal l appear doubtful to t h e said Cour t or J u d g e u p o n the said enqu i ry whe the r any such goods debts or effects be long or are due to such plaintiff 's debtor or in case t he person in whose h a n d s any such goods debts or effects shal l be a t t ached shal l desire t h a t t h e
| m a t t e r | m a y | be more | fully inves t iga ted it shall be lawful for t h e said |
| Cour t or J u d g e to order t h e m a t t e r to be t r ied | by | a j u r y | and | in | t he |
| m e a n | t i m e | all proceedings | shal l be suspended a n d shal l cont inue in |
| t h e | s ta te in wh ich | t hey t h e n | m a y | be u n t i l t h e | t r i a l | of such m a t t e r | and |
| in order t h a t t h e same m a y be t r i ed in due form i t shall be lawful | for |
| t h e | plaintiff | to b r i n g an act ion and finally to proceed the re in in t h e |
| n a m e of his said debtor aga ins t t h e person in whose h a n d s any such |
goods deb ts or effects shal l have been a t t ached as aforesaid a n d after t he verdic t of t h e j u r y shal l be t a k e n such and t h e l ike proceed
| ings shal l be fur ther | h a d | upon | such a t t a c h m e n t | as are hereinbefore |
| directed to be had after t h e de terminat ion of | t h e m a t t e r by t h e Court |
| or | J u d g e . |
| 7. A n d be i t fu r ther | enacted T h a t before execut ion shall be |
had upon any such j u d g m e n t aga ins t t h e said goods debts and effects so a t tached as aforesaid t h e plaintiff in such act ion shall en ter in to a recognizance w i t h two sufficient suret ies to be examined as to the i r sufficiency a n d approved of by t he Cour t or J u d g e in double the va lue of t h e goods debts and effects so a t t ached to restore t h e full va lue thereof or so m u c h as shall exceed t h e debt or demand which shal l finally appear to be due toge ther w i t h lawful in te res t if a t any t ime wi th in th ree years after s igning such j u d g m e n t as aforesaid t h e defendant shal l come in to Cour t a n d disprove the whole or any par t of such debt or demand A n d to t h e end t h a t t h e va lue of t he goods or effects so a t t ached m a y be t r u l y ascertained t h e said Cour t shall at t h e ins tance of t h e said plaintiff issue a precept
to
to t h e Sheriff or h is depu ty c o m m a n d i n g h i m w i t h t h e assis tance of two good a n d sufficient m e n to open and inspect such goods and effects a n d t r u l y to appra ise t h e same a n d such appra i sement together w i th
| a n inventory thereof | fo r thwi th to r e t u r n in to t h e said Cour t and | such |
appraised va lue shal l be deemed a n d t a k e n to be t h e t r u e va lue of such goods and effects for wh ich such suret ies shall be held to be l iable by the i r said recognizance.
| 8. A n d be i t fu r ther enacted T h a t t h e plaintiff | in every | such |
| act ion shal l before execut ion file in t h e office of t h e said Cour t a | rol l |
| of | such j u d g m e n t in | l ike form | and | m a n n e r | as | o ther | j u d g m e n t s | are |
requi red by the ru les and prac t ice of t he said Cour t to be enrolled.
| 9. | A n d be i t fu r ther | enacted T h a t i t shal l be lawful a t any t i m e |
| w i t h i n th ree years after | such j u d g m e n t as aforesaid for | t h e | defendant |
in a n y such ac t ion to appear before t h e said Cour t and to allege a n d prove t h a t such debt or demand was no t due or t h a t more money h a t h been levied t h a n was due a n d t h e said Cour t shal l t he r eupon proceed
| in a s u m m a r y m a n n e r to enqu i re in to t h e same and | to order | any |
surp lus which shal l have been un jus t ly levied toge ther w i t h t h e levy fees the reon a n d lawful in teres t for t he same to be res tored to t h e defendant and in case such res t i tu t ion shal l no t be m a d e t h e n t h e s u m so ordered to be restored toge ther w i th costs shal l be levied b y execut ion agains t t h e plaintiff in l ike m a n n e r as o ther execut ions in
| 10. | A n d | be i t fur ther | enac ted | T h a t | every such a t t a c h m e n t | u p o n |
which execut ion shal l have been levied as aforesaid m a y be pleaded in b a r b y any such person or persons in whose h a n d s such goods debts or effects shal l be a t t ached to any act ion or ac t ions which shal l be b r o u g h t by or on behalf of any such debtor for t h e recovery of such goods debts a n d effects a n d if any such ac t ion shall be b r o u g h t by
| any such debtor or debtors pend ing such | a t t a c h m e n t | t h e | same | shal l |
| be s tayed by t h e order | of t he said Cour t un t i l t h e a t t a c h m e n t | shal l | be |
| dissolved | or t he proceedings t h e r e u p o n | shal l be | de te rmined . |
| 1 1 . Provided always a n d | be | it | fur ther | enacted | T h a t | n o t h i n g |
in th i s L a w or Ord inance conta ined shal l ex tend or be applied to act ions commenced agains t two or more jo in t defendants for any such debt cont rac ted wi th in t h e said Colony as aforesaid where one or more of such jo in t defendants shall or m a y be served w i t h process according
| to t h e course a n d pract ice of t h e said | Cour t . |
| 12. A n d be i t fu r ther enacted Tha t t h i s Law or | Ord inance |
| shal l commence a n d t a k e effect from a n d after | t he pass ing | a n d |