Yukon Territory.

The consolidated ordinances of the Yukon Territory, 1902,: being a ... online

. (page 27 of 77)
Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 27 of 77)
Font size
QR-code for this ebook


84S. In the following cases namely : Leave to iwue

(a) Where six years have elapsed since the ludgment or ^^JSn wJ^.
date of the order or any change has taKen place by

death or otherwise in the parties entitled or liable to
execution ;

(b) Where a husband is entitled or liable to execution
upon a judgment or order for or against a wife ;

(c) Where a party is entitled to execution upon a judg-
ment of assets infuturo ;

(d) Where a party is entitled to execution against any of
the shareholders of a joint stock company upon a
judgment recorded against such company or against
a public officer or other person representing such
company ;

the party alleging himself to be entitled to the execution
may apply to the judge for leave to issue the execution
accordingly ; and such judge may if satisfied that the party
so applying is entitled to issue execution make an order to
that effect or may order that any issue or question neces-
sary to determine the rights of the parties shall be tried in
any of the ways in which any question in any action may-
be tried ; and in either case such judge may impose such
terms as to costs or otherwise as are just. [E. 601.] N.W.T.,
c. 21, E. 849.

849. Every order of the Court or judge in any cause or Enforcement
matter may be enforced against all persons bound thereby ®^ o"^®".
in the same manner as a judgment to the same effect.
[E. 602.] N.W.T., c. 21, E. 850.

14— T. o.

Digitized by VjOOQIC



210



Cap. 1*7



CONSOLIDATED OBDINANOBS



C. 0.



Executions by
or against a
person not a
party.



850. Any person not being a party to a cause or matter
who obtains any order or in whose favour any order is made
shall be entitled to enforce obedience to sucn order by the
same process as if he was a party to such cause or matter
and any person not bein^ a party to a cause or matter
against whom obedience to any judgment or order may be
enforced shall be liable to the same process for enforcing
obedience to such judgment or order as if he was a party
to such cause or matter. [E. 604.] N.W.T., c. 21, R. 861.



Facts arisen
too late to be
pleaded.



Stay of
execution.



851. No proceeding by audita querela shall hereafter be
used ; but any party against whom a judgment has been
given may apply to the judge for a stay of execution or
other relief against such judgment upon the ground of facts
which have arisen too late to be pleaded and the judge
may give such relief and upon such terms as are just.
[E. 605.] N.W.T., c. 21, R. 852.



Court may
order act to
be done at
expense of
party refusing



Enforcement
of judgment
against
corporation.



Forms of
execution.



852. If a mandamus granted in an action or otherwise or
a mandatory order, injunction or judgment for the specific
performance of any contract is not complied with the court
or judge besides or instead of proceedings against the dis-
obedient party for contempt may direct that the act required
to be done may be done so far as practicable by the party
by whom the judgment or order has been obtained or some
other person to be appointed by the Court or judge at the
cost of the disobedient party and upon the act being done
the expenses incurred may be ascertained in such manner
as the Court or judge directs and execution may issue
for the amount so ascertained and costs. [E. 608.] N.W.T.,
c. 21, R. 358.

853. Any judgment or order against a corporation wilfully
disobeyed may by leave of the Court or judge be enforced
by execution against the corporate property or by attach-
ment of the persons of the directors or other oflBicers. [E. 609.]
N.W.T., c. 21, R. 354.

854. Every writ of execution shall follow form B in the
schedule hereto adapted to the circumstances of each case
and where form B is not appropriate the form shall be
settled by the judge on ex parte application. N.'W.T.,
c. 21, R. 855.



Eflfect of
execution in



855. Except as hereinafter mentioned every writ of execu-
Ih^ff^inds *^^^ against goods and chattels shall at and from the time of
inst its delivery to the sheriff to be executed bind all the
goods and chattels or any interest in all the goods and
chattels of the judgment debtor within the Territory and
shall take priority to any chattel mortgage, bill of sale or
assignment for the benefit of all or any of the creditors of



as

^oods of
judgment
debtor.



Digitized by



Google



1902 jui)iCATURE Cap. 1*7 211

the judgment debtor executed by him after the receipt by
the sheriflF of such writ of execution or which by virtue of
the provisions of The Bills of Sales Ordinance has not taken
eflFect prior to such receipt as against the creditor's or cre-
ditors' interest under the execution but shall not take
priority to a bona fide sale by the judgment debtor followed
by an actual and continued change of possession of any of
his goods and chattels without actual notice to the pur-
chaser that such writ is in the hands of the sheriff. N.W.T.,
c. 21, E. 866.

356. No sale of personal property seized under any writ Notice of
of execution or process shall be made without such gale ^^®"^^*^®-
being advertised for at least ten days by public notice
thereof describing the property to be sold copies of which
notice shall be posted in the offices of the clerk and sheriff

and in at least five public places in the locality where the
same is to be sold ; but when the articles seized are of Perwhabie
a perishable nature or are of such a character as to not allow ^^ ^'
a delay of ten days as hereinbefore provided the same may
be sold forthwith. N.W.T., c. 21, E. 357.

357. On any writ of execution against goods and chattels ^^^^ 9^
the sheriff charged with the execution of the same may in ^Sg!^"
seize and sell the interest or equity of redemption in any

goods or chattels including leasehold interests in any lands

of the party against whom the writ has issued and such Leasehold

sale shall convey whatever interest thb mortgagor had in i^^^^^-

such goods and chattels at the time of the seizure. N.W.T.,

c. 21, E. 358.

(2.) Any interest which a free miner has in any mineral Mining claims
claim, or in any mining property as defined in the regula- an^s^d^nder
tions for the disposal of quartz mining claims and hydraulic execution
and dredging concessions and the regulations governing ^f^^^^^ s^*^^-
placer mining on Dominion lands in the Yukon Territory
and the amendments thereto, may be seized and sold under
and by virtue of an execution issued against goods and
chattels. No. 38 of 1900, s. 1.

358. The sheriff having the execution of any writ of execu- Seizure of
tion against goods may seize any money or bank notes, any bL^S^notes,
cheques, bills of exchange, promissory notes, bonds, mort- cheques, etk
gages, specialties or pther securities for money belonging

to the execution debtor and such sheriff may pay and
Assign them to the execution creditor at the sum actually
due on and secured by them respectively if he will accept
them as money collected or the sheriff may sue in his own
name for the recovery of the sums secured thereby when
the time of payment thereof has arrived and on payment
execute and give valid discharges therefor but no such
sheriff or other party shall be bound to sue any party liable

14j_Y.o.

Digitized by VjOOQIC



212



Cap. 17



CONSOLIDATED ORDINANCES



C. 0.



upon any such cheque, bill of exchaDge, promissory note,
bond, specialty or other security unless the party who sued
out the execution furnishes sufficient security to indem-
nify him from all costs and expenses to be incurred in the
prosecution of the action or to which he may become
liable in consequence thereof. N.W.T , c 21, R. 359.



Seizure of
mortgages
belonging to
debtor.



Entry in
register.



Notice to
mortgagor.



859. The officer charged with the execution of any writ
of execution against goods may seize thereunder any
reffistered mortgage in favour of the execution debtor
whether upon lands or chattels by delivering a notice in
writing of such seizure to the registrar or clerk in the
office where such mortgage is registered ; but no such mort-
gage shall be affected or charged by any writ of execution
until delivery of such notice.

(2.) Upon receipt of such notice the clerk or registrar
shall make an entry thereof in the register for which he
shall be entitled to a fee of fifty cents :

Provided that unless and until personal service of a notice
of seizure on the mortgagor is made he shall not be affected
thereby, and pajnnents made by him to the mortgagee be-
fore service of such notice shall be deemed good and valid.
N.W.T., c. 21, R. 860.



Trannferof 860. The transference by the sheriff to the execution
diSiareee^' Creditor of any cheques or property named in Rule 868^
shOTiff. shall discharge the sneriff to the extent of the amount due

on and secured thereby. N.W.T., c 21, R. 861.



Payment by
sheriff of
moneys
realised.



Growing crops



Issue of

execution

lands.



861. Subject to the provisions of The Creditors'' Relief
Ordinance the sheriff shall pay over to the execution creditor
or his solicitor all moneys recovered or a sufficient sum to
discharge the amount directed by the writ to be levied ;
but the sheriff shall in all cases be entitled to first deduct
his fees and expenses. N.W T., c. 21, R. 362.

862. No sale of growing crops whether grain or roots
shall take place until after the same have been harvested
and threshed or taken and removed from the ground when
after all charges for harvesting threshing, taking and
removing have been paid and all exemptions been claimed
and reserved the balance may be sold. N.W.T. c. 21, R. 868.

863. Any person who becomes entitled to issue a writ of
execution against goods may at or after the time of issuing
the same issue a writ of execution against the lands of the
person liable, provided that not less than $50 remain due
and unpaid on the judgment and deliver the same to the
sheriff at or after time of delivery to him of the writ against
goods and either before or after any return thereof; but
such officer shall not sell the said lands within less than



Digitized by



Google



1902 JUDICATURE Cap. 11 218

one year from the day on which the writ against lands is Sale of lands.
delivered to him nor until three months' notice of such sale Time for.
has been posted in a conspicuous place in the sheriff's and
clerk's offices respectively and published two months in Advertise-
the newspaper nearest the lands to be sold. ^^^^ ^^'

(2.) Where more than one newspaper is published in the
same locality the notice of sale may be published in either
one. N.W.T., c. 21, R. 364.

364. No sale shall be had under any execution against Return
lands until after a return of nulla bona in whole or in part bSforesaS
with respect to an execution against goods in the same suit of lands.

or matter by the same officer. Where there are no bidders Adjournment
or no sufficient bid has been offered for the land to be sold ^^ *^®*
as aforesaid the sheriff may adjourn such sale from time to
time and a notice of the lime and place of such adjourn-
ed sale shall be posted by him in a conspicuous place in
the sheriff's and clerk's offices respectively, and such notice
shall be sufficient notice of such adjourned sale. N.W.T.,
c. 21, R. 365.

365. In cases where the sheriff or other officer sells Form of
lands under execution for which a certificate of title has J^fi^^ ol"^
not been granted a transfer executed by him in the form title not
prescribed for lands for which a certificate of title has been fi^*^^®^-
granted shall be sufficient to convey the execution debtor's
interest therein to the purchaser. N.W.T., c. 21, R. 366.

366. No sheriff shall make any return of nulla bona either Return nulla
in whole or in part to any writ against goods until the ^^'^'
whole of the goods of the execution debtor liable to seizure,

which he can find have been exhausted. N.W T.,c. 21,R.3t>7.

36'7. If the amount authorised to be made and levied if money
under the writ against goods is made and levied there- no*^te^^*^*^
under the person issuing the writ against lands shall not execution
be entitled to the expenses thereof or of any seizure or ^^^^
advertisement thereunder and the return to be made by Return in
the officer charged with the execution of the writ against *"^^ '^^*®®*
lands to such writ shall be to the effect that the amount
has been so niade and levied as aforesaid. N.W.T., c. 21,
K., 368.

368. VVhere under any writ of execution while in force Sale after
personal property has been seized the sheriff may proceed ^^i^^^^^^^-
to sell the same although the writ of execution has
expired. N W.T., c 21, R. 869.

869. Where it is sought to enforce a judgment made for Execution for
the recovery of any property other than land or money the pro^^r'S^ or
Court or judge may upon the application of the plaintiff or recovCTv of

assesseci vaiue.



Digitized by



Google



214



Cap. 17



OONSOLIDATSD OBDINANOES



0. o.



person entitled thereto order that execution issue for
the delivery of the property without giving the defendant
or other party the option of retaining the property and
paying the assessed value if any ; or at the option of the
plaintiff or person entitled thereto that the sheriff levy and
make the assessed value vnth or v^ithout costs in either
instance as is just and for such purpose separate writs may
be issued for the costs. [E. 647.] N.W.T., c. 21, B- 370.

870. A judgment or order that a party do recover posses-
sion of any land or that any person therein named do
deliver up possession of any land to some other i>erdon
may, without any order for such purpose, after fifteen days
from the entry of the judgment or service of a copy of the
order, be enforced by a writ of possession. [E. 644 and
645.] N.W.T., c. 21, R. 871.

Execution for 871. Upou any judgment or order for the recovery or de-

iISTSd cLts livery of possession of any land and costs there may be

either one writ or separate writs ot execution for the

recovery of possession and for the costs, at the election of

the successful party. [E, 646.] N.W.T., c. 21, R. 872.



Writ of
poenession for
recovery of
land.



II. — Poundage, Interest, 8fc,

Levy of 372. Upou any execution against lands or goods the sheriff

^^^^ and ^^y ^^ addition to the sum recovered by the judgment
expenses. levT the pouudagc fees, expenses of the execution and

interest upon the sum so recovered from the time of entering

the judgment N.W.T., c. 21, R. 378.



Poundage :
amount
chargeable in
certain cases.



878. In case a part only is levied by the sheriff on or by
force of any execution against goods and chattels, the
sheriff shall be entitled besides his fees and expenses of ex-
ecution to poundage only upon the amount so made by
him whatever be the sum indorsed upon the writ and in
case the personal estate of the defendant is seized or ad-
vertised on or under an execution, but not sold by reason
of satisfaction having been otherwise obtained or from
some other cause and no money is actually made by the
sheriff on or by force of such execution the sheriff shall be
entitled to the fees and expenses of execution and pound-
age only on the value of the property seized not exceeding
the amount indorsed on the writ or such, less sum as a
judge of the court out of which the writ issued deems
reasonable under the circumstances of the case. Any party
interested may apply to the judge to fix such sum either
before or after taxation of the sheriffs bill of costs, charges
and expenses or on review or appeal from such taxation.
N.W.T., c. 21, R. 374.



Digitized by



Google



1902 JUDICATURE Cap. 17 216

874. Upon the satisfaction of an execution either in whole ShenflPs
or in part by payment, levy or otherwise or upon the with- ^IrowH,
drawal, stay or setting aside of an execution the sheriff or stay, etc, of
officer claiming any fees,-pouDdage, incidental expenses or ®*®°"*^°'^-
remuneration which have not been taxed shall upon being
required by any party interested within forty-eight hours
deliver a copy of his bill in detail to the applicant. Such
bill shall be taxed by the clerk of the court upon the
applicant obtaining and serving an appointment for such
taxation. N.W.T., c. 21, R. 376.

375. No sheriff shall collect any fees, costs, poundage or Sherirs coats.
incidental expenses after having been required to have the
same taxed without taxation ; and upon tender of the amount Taxation.
taxed no fees, costs, poundage or incidental expenses in '''®"^®'-
respect of proceedings subsequently taken shall be allowed
to any sheriff. N.W.T., c. 21, R. 877.

876. It shall be the duty of every taxing officer above re- Duty of
ferred to to grant an appointment for the taxation of and to ****°^ ^®^'^-
tax the bills of costs presented to him for taxation as herein
required upon payment or tender of his fees and to give
when requested a certificate of such taxation and the amount
thereof. N.W.T., c. 21, R. 878.

377. Either party dissatisfied with the taxation may Reviaion of
appeal to a judge for a revision of such taxation. N."W.T., **'»'i<^'^
c. 21, R. 879.



ORDER XXXI.

DISCOVERY IN AID OF EXECUTION.

378. When a judgment or order is for the recovery or Examination
payment of money the party entitled to enforce it may of judgrment
apply to a judge ex parte for an order that the debtor liable officer^o?
under such judgment or order or in the case of a corpora- corporation.
tion that any officer thereof be orally examined as to whe-
ther any and what debts are owing to the debtor and
whether the debtor has any and what property or means of
satisfying the judgment or order before the judge or whom
he may appoint ; and the judge may make an order for the
attendance and examination of such debtor or other person
before the clerk of the court or other person to be named in
the order and for the production of any books or documents.

(2) Where judgment has been obtained as aforesaid the Examination
Court or judge may ex parte on the application of the party ©mpfoy^!^
entitled to enforce the judgment order any clerk or employee ^^^'jo®^
or former clerk or employee of the judgment debtor or any or transfer^
person or officer or officers of any corporation to whom the «* debtor's

* J *^ property.



Digitized by



Google



216



Cap. 17



CONSOLIDATED OBDINANOSS



CO.



Use of
examination.



Difficulty in
enforcing
judgment
other than
for money.



debtor has made a transfer of his property or eflfects since the
date when the liability or debt whicn was the subject of
the action in which judgment was obtained was incurred
to attend before the clerk of the ccturt or other person to be
named in the order and to submit to be examined upon
oath as to the estate and effects of the debtor and as to the
property and means he had when the liability or debt afore-
said was incurred and as to the property or means he still
has of discharging the judgment and as to the disposal he
has made of any property since contracting the debt or
incurring the liability and as to any and what debts are
owing to him.

(3) The examination shall be for the purpose of discovery
only and no order shall be made on the evidence given on
such examination but any such examination may be read on
any subsequent proceedings between the same parties or
between the execution creditor and any transferee of the
property or effects of the execution debtor or in any pro-
ceeding to obtain payment directly or indirectly whether
by attachment of debts, equitable execution or otherwise.
[E. 610]. N.W.T., c. 21, R. 880.

879. In case of a judgment or order other than for the re-
covery or payment of money if any difficulty arises in or
about the execution or enforcement thereof any party inter-
ested may apply to a judge and the judge may make such
order thereon for the attendance and examination of any
party or otherwise as is just and may direct how such
judgment or order may be enforced or executed. [E. 611.]
N.W.T., c. 21, R. 880.



Conduct 380. Any person liable to be examined under any of the

money. preceding rules of this order shall be entitled to the like

conduct-money and payment for expenses and loss of time
as upon attendance at a trial in court and may be compelled
Production of to attend and testify and to produce books and documents
" in the same manner and subject to the same rules of exam-

ination and the same consequences of neglecting to attend
or refusing to disclose the matters in respect of which he
is examined as in the case of a witness on a trial. N.W.
T., c. 21, R. 881.



documents.
Rules of
examination.
Disobedience.



Costs. 881. The costs of any application under this order and of

any proceedings arising from or incidental thereto shall be
in the discretion of the judge. [E. 612], N.W.T., c. 21,
R. 382.



Digitized by



Google



■•902 JUDICATURE Cap. 11 211

ORDER XXXII.

ATTACHMENT OF 3>EBTS AND ARREST OF DEFENDANT.

882. Any plaintiff in an action for a debt or liquidated issue of
demand before or after judgment and any person who has futons.
obtained a judgment or order for the recovery or payment

of money may issue a garnishee summons in the form or to
the effect of toTxa C in the schedule hereto. Such summons
shall be issued by the clerk upon the plaintiff or judgment
creditor, his solicitor or agent filing an aflSdavit —

(a) Showing the nature and amount of the claim or Affidavit
judgment against the defendant or judgment debtor '^®^®^<^'^-
and swearing positively to the indebtedness of the
defendant or judgment debtor to the plaintiff or
judgment creditor ;

(b) Stating to the best of the deponent's information

and belief that the proposed garnishee (naming
him) is indebted to such defendant or judgment
debtor. N.W.T., c. 21, R. 384.

883. Service of such summons on the garnishee shall bind Service binds
any debt due or accruing due from the garnishee to the ^®^^-
defendant or the judgment debtor whether such debt is
payable in money or otherwise.

(2.) The garnishee summons may be served whether on Manner of
the garnishee, defendant or judgment debtor in any way ^'^^^•
that a writ of summons may be served ; and the provisions
relating to service of a writ of summons shall apply to
service of a garnishee summons.

(8.) A copy of the garnishee summons shall be served on Service on
the defendant or judgment debtor (or his solicitor) within f^^^^^^
twenty days after service on the garnishee or such further debtor.
time as a judge ex parte orders. N.W.T., c. 21, R. 385.

384. No order shall be made against the garnishee or No order to i?o
for payment out of any money paid into court by the garni- l^amtrff untu?
shee until at least ten days after the service of the said etc.
summons on the defendant or judgment debtor and on the
garnishee, nor when a garnishee summons issues prior to
judgment until the plaintiff has recovered a judgment
against the defendant.

(2.) The defendant or judgment debtor or the garnishee Application
or any person claiming to be interested in the moneys ^^^laJe^^
attached may apply to a judge in chambers to set aside the
garnishee summons.

, (3.) No money paid into court under these proceedings Payment out
shall be paid out unless on the written consent of the ^ ^"^
parties interested except by order of the Court or judge
which order may be made ex parte or on such notice as the
judge directs. N.W.T., c. 21, R, 386.



Digitized by



Google



218



Cap. It



OONSOIilDATBD OBDINANOBS



0. 0.



Garnishee's
costs.



885. A garnishee paying money into Court shall be
entitled to deduct therefrom the necessary disbursements
and costs (not exceeding $5) except when the debt due from
him to the defendant or judgment debtor is larger than the
amount of the plaintiffs claim and costs in which case the
garnishee may deduct such costs and disbursements out of
the balance in his hands, but if such balance is not suffi-
cient to cover such disbursements and costs he may deduct
the difference from the amount to be paid into court.
N.W.T., c. 21, E. 38'7.



Yukon
Government,
garnishment
* against.



Service.



886. The Government of the Yukon Territory may be
garnisheed under the provisions of this order with regard
to the moneys due or accruing due to all persons perma-
nently employed by the Grovemment of the Territory.

(2.) Such garnishee process shall be served upon tne Ter-



Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 27 of 77)