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ritorial Secretary in his office. N.W.T., c. 21, s. 888.

Default by

88'7. If the garnishee does not pay into Court the amount
due from him to the debtor or an amount equal to the
claim or judgment and costs and does not dispute the debt
due or claimed to be due from him to such debtor then the
judge may after judgment has been entered against the
primary debtor or at once when the garnishee summons is
founded on a judgment already recovered order that judg-
ment be entered up against the garnishee and that execution
issue and it may issue accordingly to levy the amount due
from such garnishee or so much thereof as is sufficient
to satisfjr the judgment or order. [E. 624.] N.W.T., c. 21,
E. 889.

Dispute by

Trial of issue.

888 If the garnishee disputes his liability or claims that
the debt is not attachable he shall enter with the clerk
within the time specified in the summons or such further
time as the judge allows a statement showing the grounds
on which he disputes liability or claims that the debt is
not attachable. After which, on application of the
plaintiff or any other person interested on two days' notice
given to the garnishee, the judge may fix a time and place
for summarily determining the question of liability or
whether the debt is attachable as the case may be ; or may
order that any issue or question necessary for determining
such liability, or whether the debt is attachable be tried
and determined in any manner in which any issue or
question in any action may be tried or determined and
may direct who shall be the parties to such issue or question
and any determination under this section whether sum-
marily or otherwise shall form a judgment of the Court
and may be enforced as such. [E. 625.] N.W.T., c. 21, R.

Digitized by


1012 JUDICATURE Cap. 11 219

889- If within two months after the appearance by the i>eiay by
garnishee the plaintiff does not proceed to have the question ^ ^°* '
of liability determined as hereby provided the garnishee AppUcation
may apply for an order to set aside the garnishee summons. ^^ ^"*»«*^^
N.W.T., c. 21, R. 391.

890. Whenever it is suggested by the garnishee or any Su^estion of
person claiming to be interested that the debt attached ^r^.°
belongs to some third person, or that any third person has

a lien or charge upon it the judge may order such third
person to appear and state the nature and particulars of
his claim upon such debt. |E. 626.] N.W.T., c. 21, R. 892.

891. After hearing the allegations of any third person Procedure
under such order as in the next preceding rule mentioned ^^^^"^^
and of any other person whom by the same or any subse- suggested
quent order the judge orders to appear, or in case of *® ®'^*^**^®^*
such third person not appearing when ordered the judge

may order execution to issue to levy the amount due from
such garnishee or any issue or question to be tried or deter-
mined in manner aforesaid and may bar the claim of such
third i)erson or make such other order as such judge
thinks fit upon such terms in all cases with respect to the
lien or charge (if any) of such third person and to costs as
the judge thinks just and reasonable. [E. 62'7.] N.W.T.,
c. 21, R. 898.

892. Payment made by or execution levied upon the gar- Garnish^
nishee under any such proceeding as aforesaid shall be a bypayment
valid discharge to him against the debtor to the amount or levy.
paid or levied although such proceeding is set aside

or the judgment or order reversed or the plaintiff fails in
his action. [E. 628.] N.W.T., c. 21, R. 898.

893. The garnishee shall not be liable for the costs of the CJostsin
proceedings unless and in so far only as occasioned by set- ^J^^^gs.
ting up a defence which he knew or ought to have known

was untenable ; and the plaintiff or judgment creditor in
garnishee proceedings shall be entitled to tax against the
defendant or judgment debtor and add to the judgment
the costs of such proceedings unless the judge otherwise
orders and subject to this provision the costs of all parties
shall be in the discretion of the judge. N.W.T.. c. 21, R.

894. No execution shall in any case issue to levy the ^^*®^^'?2
money owing from any garnishee until and so far only as ^ney due.
such money shall become fully due. N.W.T., c. 21, R. 396.

895. No debt due or accruing due to a mechanic, work- Exemption
man, labourer, servant, clerk or employee for or in respect ^^ighment.

Digitized by



Cap. 17


0. 0.

of his wages or salary shall be liable to seizure or attach-
ment unless such debt exceeds the sum of $100 and' then
only to the extent of the excess ;
Exception. Provided that nothing in this rule contained shall applv

to any case where the debt sued for or in respect of which
the judgment was recovered has been contracted for board
and lodging. N.W.T., c. 21, R. 397.


order arrest of
about to quit
the territory.

If plaintiff 896. If a plaintiff in any action brought for recovery of

duehkn, judge ^ debt, or damages arising from breach of contract, by
or clerk may affidavit shows to the. Satisfaction of a Judge of the Court
in which the action is brought, or of the clerk of such
Court, that such plantiff has a cause of action arising with-
in the Dominion of Canada against the defendant, or has
recovered judgment in the Dominion of Canada against
him, to the amount of one hundred dollars or upwards, and
that there is probable cause for believing that the defen-
dant, is about to quit the Yukon Territory with intent to
defraud creditors generally or the plaintiff in particular,
unless he is forthwith apprehended, or has disposed or is
about to dispose of his property, or any part thereof, with
such intent as aforesaid, it shall be lawful for such judge
or clerk by special order to direct that such defendant so
about to quit the Yukon Territory, or so having disposed
or being about to dispose of his property as aforesaid, shall
be arrested and held to bail for such sum (not exceeding
the amount of the debt, money demand, or damages as afore-
said, and costs) as to such judge or clerk seems proper. No.
26 of 1899, s. 1.

May require


^^^ . ^^ . . It shall be lawful for such judge, or clerk, when-

bSSre making ever he thinks fit to require security to be given by the
order. plaintiff, to the satisfaction of such judge or clerk, for the

defendant's costs and damages consequent on such arrest
under such order, if the plaintiff has obtained such
order without reasonable and probable cause. No. 26 of
1899, s. 2.

Order to bear 398. Evcry such Special order shall bear date on the day
frying fnlb^ ^f the signing thereof by the judge or clerk, and shall be
good for 12 ^alid for the period therein specified, not exceeding twelve
calendar months. No. 26 of 1899, s. 8.


authority for

399. A copy of such special order, under the seal of the
Court in which it is made, shall be sufficient authority to
any sheriff, deputy sheriff, bailiff or other officer entrusted
with the execution thereof, to take into custody and detain
the defendant named therein. No. 26 of 1899, s. 4.

Digitized by


1902 JUDICATURE Cap. 11 221

400. The sheriff or other officer to whom any such order Officer shaU
is directed shall, within the period specified in the order, *"^* person.
but not afterwards, proceed to arrest the defendant there-
upon ; and such defendant, when so arrested, shall remain
in custody until he has given security to the plaintiff, to
the satisfaction of the sl^riff, for, or, has made deposit of,
the sum mentioned in such order, together with such
amount for costs as is specified therein. Any officer other
than the sheriff, may upon instructions by letter or telegram
from the sheriff of the Yukon Territory, arrest the defend-
ant without actually having in his possession a copy of the
special order mentioned in the next preceding rule ; pro-
vided that at the time of such arrest a copy of such special
order is in the hands of the said sheriff. No. 20 of 1899, s.
6, and No. 31 of 1900, s. 1.

401. Any special order may be made, and the defendant Special order
arrested in pursuance thereof, at any time after the com- ^^^JSb any^
mencement of such action and before or after final judgment time after
has been obtained therein. Where such order is applied m<^o?Mtioii
for at thecommencement of an action, no statement of claim or before final
need be filed upon the issue of the writ of summons, but ^^ f^^^-
such statement of claim shall be filed within three days

after the making of such order for arrest ; otherwise such
order shall become void. No. 26 of 1899, s. 6.

402. It shall be lawfal for any person arrested upon such Piaintiflf may
order to apply, at any time after such arrest, to a judge of ^ow'why '^ ^
the court in which the action has been commenced, wrested

by summons calling on the plaintiff in such action to show ^^ *^^
cause why the person arrested should not be discharged discharged.
out of custody ; and it shall be lawful for such judge to
make such order upon such summons as the judge seems
fit. No. 26 of 1899, s. 7.


408 In addition to any other ground upon which such Judg;e may
udge may order the discharge of a defendant from custody, diS^^hiiSS
ie may order such discharge upon being satisfied that such no means to
defendant has no means or ability to satisfy the claim or ^^^^ *^*^™*
judgment, or any part or farther part thereof: Provided
always, that if upon such application it appears so the
judge, whether by the examination of i?uch defendant or
by other evidence, that such defendant has incurred the
debt which is the subject of the claim or judgment against
him, or any material part thereof, by fraud or false pretences,
or that such defendant has concealed or made away with if debt
his property, or any part thereof, in order to defeat, delay, {^ud judge
or defraud his creditors, or any of them, such judge may ™ay XS^jl
order such defendant to be committed to any common gaol, glTnot ^
with or without hard labour, for any term not exceeding exce^ing 12
twelve calendar months, unless the claim or judgment is ^^^

Digitized by



Cap. 17


0. 0.

sooner satisfied, and at the termination of such term of im-
prisonment such defendant shall be entitled to his dis-
charge from custody, unless it is made to appear to
the judge, whether by the further examination of such
defendant or otherwise, that he has means and ability, or
that it is within his power, to satisfy the claim or judg-
ment, or some portion thereof, in wnich case the judee
may order the further detention of such defendant until ne
satisfies the Court that he is unable to further satisfy the
debt No. 26 of 1899, s. 8.

of debtor shall

404. The imprisonment of a judgment debtor under
not*o^te M atithority of this Order shall not operate as a discharge of
. i^ ^ ^j^^ judgment, either in. whole or in part, nor operate to
bar or suspend any remedies which the creditor may other-
wise be entitled to take for the recovery of his demand.
No. 26 of 1899, s. 9.

discharge of








405. In the next nine preceeding rules the term
" plaintiff*" includes a judgment creditor, and the term
** defendant " includes a judgment debtor. No. 26 of 1899,
s. 10.



how made.

of property.

406. Applications for interlocutory orders for mandamus,
injunction or receiver or the interim' preservation of proper-
ty may be made ex parte in the first instance or by notice
of motion :

Provided that on an ex parte application the judge may
require notice to be given to any party or parties interested.
N.W.T., c. 21, R. 398.

407. Where by any contract 9^ prima facie case of liability
is established and there is alleged as matter of defence a
right to be relieved wholly or partially from such liability
the Court or judgie may make an order for the preservation
or interim custody of the subject matter of the litigation or
may order that the amount in dispute be brought into court
or otherwise secured. Application for an order under this
rule may be made in chambers by notice of motion by
any party at any time after his right thereto appears from
the pleadings or, if there are no pleadings, is made to appear
by affidavit or otherwise to the satisfaction of the court or
judge. [E. t>57 and 663.] N.W.T., c. 21, R. 899.

Digitized by


1902 JUDICATURE Cap. 17 228

408. It shall be lawfull for a judge on the application of ^^^'^®^°'' ^^®
any party to make any order for the sale by any person or ^ ^^*^*^^^^' ®*^'
persons named in such order and in such manner and on

such terms as the jud^e thinks desirable of any goods,
wares or merchandise which may be of a perishable nature
or likely to injure from keeping or which for any other just
or sufficient reason it is desirable to have sold at once.
[E. 658.] N.W.T., c. 21, R. 400.

409. It shall be lawfal for a judge upon the application Detention,
of any party to a cause or matter and upon such terms as orl^^tion
are just to make any order for the detention, preservation or ^^ property.
inspection of any property or thing being the subject of

such cause or liiatter or as to which any question may arise
therein and for all or any of the purposes aforesaid to au-
thorise any person to enter upon or into any land or build-
ing in the possession of any party to such cause or matter
and for all or any of the purposes aforesaid to authorise any
samples to be taken or any observation to be made or
experiment to be tried which may be necessary or expe-
dient for the purpose of obtaining full information or evid-
ence. [E. 659.] N. W.T., c. 21, R. 401.

410. It shall be lawful for the judge by whom any inspection by
cause or matter is heard or tried with or without a jury or ^^^^ ^^ ^^^^'
before whom any cause or matter is brought to inspect any
property or thing concerning which any question arises
therein and in jury cases the judge may make all such

orders upon the sheriff or other person as are necessary to
procure the attendance of the jury at such a time and place
and in such manner as he thinks fit. [E. 660 and 661.]
N.W.T.,c. 2I,R. 402.

411. Where an action is brought to recover or a defen- Order for
dant in his defence seeks by way of counterclaim to recover 8p^Itil7^^
specific property other than land and the party from whom chattel
such recovery is sought does not dispute the title of the i/^™^ ^^^^^
party seeking to recover the same but claims to retain the payment into
property by virtue of a lien or otherwise as security for any °°^^*
sum, the judge may at any time after such last mentioned

claim appears from the pleadings or if there are no pleadings
by affidavit or otherwise to the satisfaction of such judge,
order that the party claiming to recover the property be at
liberty to pay into court to abide the event of the action the
sum of money in respect of which the lien or security is
claimed and such further sum if any for interest and costs
as such judge directs and that upon such payment into
court being made the property claimed be given up to the
party claiming it [E. 664] N.W.T., c. 21, R. 403.

412. "Where any real or personal property forms the sub- Allowance out
ject of any proceedings in the court and the judge is satisfied ^^^uiue.

Digitized by



Cap. It


c. o.

that the same will be more than snfiBlcient to answer all the
claims thereon which ought to be provided for in such pro-
ceedings the judge may at any time after the commence-
ment of the proceedings allow to the parties interested
therein or to any one or more of them the whole or part of
the annual income of the real property or a part of the per-
sonal property or the whole or a part of the income there-
of up to such times as the judge directs. [E. 665.] N.W.T.,
c 21, R. 404.

Injunction. 413. An injunction shall be by a judgment or order and
any such judgment or order shall have the effect which a
similar judgment or order has in England. [E. 66*7.] c. 21,
R. 405.

wrongful act
or breach of

414. In any cause or matter in which an injunction has
been or might have been claimed the plaintiff may before
or after judgment apply for an injunction to restrain the
defendant or respondent from the repetition or continuance
of the wrongful act or breach of contract complained of or
from the commission of any injury or breach of contract of
a like kind relating to the same property or right or arising
out of the same contract and the judge may grant the injunc-
tion either upon or without terms as is just. [E. 668.]
N.W.T., c. 21, R. 406.


Statement of


415. The plaintiff in any action in which he claims
a mandamus to command the defendant to fulfil any duty
in the fulfilment of which the plaintiff is personally inter-
ested shall include the claim in his statement of claim.
N.W.T., c. 21, R. 401.

Order upon 416. If judgment is given for the plaintiff the court or
defendant for judge may by the judgment command the defendant either
per ormanoe. fQ^tj^^itj^ q^ qj^ tj^^ expiratiou of such time and upon such
terms as may appear to the court or judge to be just toper-
form the duty in question. The court or judge may also
extend the time for the performance of the duty. [E. '721.]
N.W.T., c 21, R. 408.

Enforcement. 41*7. In the event of noncompliance with the judgment
as aforesaid the same may be enforced by prerogative man-
damus as in England. N.W.T., c. 21, R. 409.

Protection of 418. No actiou or proceeding shall be commenced or pro-
S^d^iJ* **^**"^^ secuted against any person in respect of anything done in
mandamus, obcdieuce to a judgment or order for a mandamus. [E. 780.]
N.W.T., c. 21, R. 410.

Digitized by


1902 JUDICATURE Cap 11 226

419. No writ of mandamus shall hereafter be issued in Mandamus to
any action but a mandamus shall be by judgment or order j^a^ent or
which shall have the same effect as a similar judgment or order.
order has in England. [E. *722.1 N.W.T., c. 21, R. 411.



420. Where an order is made directing a receiver to be Receiver.
appointed unless otherwise ordered the person to be appoint-
ed shall first give security to be allowed by a judge duly to Security.
account for what he receives as such receiver and to pay
the same as the Court or judge directs and the person so to
be appointed shall unless otherwise ordered be allowed a Remuneration
proper salary or allowance. [E. 672.] N. W.T., c. 2 1 , R. 412.

421. When a receiver is appointed with a direction that Time for filing

- - ... - ____ accounts and

ment of

he shall pass accounts the jud^e shall fix the days upon J|^
which he shall annually or at longer or shorter periods file baL
and pass such accounts and also the days upon which he
shall pay the balances appearing due on the accounts so
filed or such part thereof as shall be certified as proper to be
paid by him and with respect to any such receiver as shall
neglect to file and pass his accounts and pay the balances Neglect of
thereof at the times so to be fixed for that purpose as afore- receiver.
said the judge before whom any such receiver is to account
may from time to time when his subsequent accounts are
produced to be examined and passed disallow the salary
therein claimed by such receiver and may also if he
thinks fit charge nim with interest upon the balances so
neglected to be paid by him during the time the same
appear to have remained in the hands of any such receiver.
[E. 674.] N.W.T., c. 21, R. 413.

422. In case of any receiver failing to file any account or Default of
affidavit or to pass such account or to make any payment or p^^^^,^ ^^^
otherwise the receiver or the parties or any ol them may be ^^ ^^
required to attend before the judge to show cause why such
account or affidavit has not been filed or such account passed

or such payment made or any other proper proceedings
taken and thereupon such directions as are proper may
be given by the judge including the discharge of any receiver
and appointment of another and payment of costs. [E. 677]
N.W.T., c. 21, R. 414.

423. When a receivership has been completed the book Receivers
containing the accounts shall be deposited in the clerk's accounts.
office. N.W.T., c. 21, R. 415.

16— Y. o

Digitized by



Cap. 11


0. O.


424. The accounts of liquidators and of guardians shall
be passed and verified in the same manner as receiver's
accounts. N.W.T., c. 21. B. 416.

of (poods.


to fudge.

from seizure.



425. After the commencement of any suit wherein the
claim is for the recovery of a debt of $50 or upwards from the
defendant upon affidavit made by the plaintiff* or one of
several plaintifiis, if more than one, his or their agent, having
a personal knowledge of the matter stating clearly and
succinctly from what cause such debt arose and the amount
thereof and that he has good reason to believe (giving
reasons therefor) that the defendant —

(a) Is about to abscond or has absconded from the Ter-
ritory leaving personal property liable to seizure
under execution for debt ; or

(b) Has attempted to remove such personal property
out of the said Territory or to sell or dispose of the
same with intent to deuaud his creditors generally
or the plaintiflF in particular ; or

(c) Keeps concealed to avoid service of process ; and
{d) In every case that the dei>onent verily believes that

without the benefit of the attachment the plaintiff

will lose his debt or sustain damage ;
and upon the further affidavit of one other credible person
that he is well acquainted with the defendant and has good
reason to believe (giving such reason) that the defendant
is about to abscond or has absconded or has attempted to
remove his personal property out of the said Territory or
to sell or di8i>ose of the same or keeps concealed with intent
as aforesaid as the case may be the judge if satisfied
with the reasons aforesaid on application to him ex parte
may direct the clerk to issue a writ of attachment in form
D in the schedule hereto which writ shall be executed by
the sheriff according to its tenor:

Provided that in any case where the debtor has absconded
or is about to abscond from the Territory leaving no wife
or family behind no property of such debtor shall be exempt
from seizure. N.W.T., c. 21, R. 417.

Copy writ of 426. A copy of every such writ shall be served on the

b^**^' ^ debtor against whose effects the same is issued at the time

^^"^ ' of making any seizure thereunder or as soon thereafter as

such service can be effected if the said debtor can be found ;

but if such personal service cannot be effected a copy thereof

shall be left with some grown-up person resident at the

Digitized by


1902 JUDICATURE Cap. 17 227

place where such seizare is made or if no person is resident,
posted in a conspicuous place on the premises. N.W.T.,
c. 21, E. 418.

427. Immediately after making a seizure under the said ShenTs
writ the sheriff shall make a return of the writ and with J^^^to^^
such return transmit annexed thereto an inventory of the
property seized and the value thereof according to the best

of his judgment and an affidavit of the manner in which
service of such writ has been eflfected. N.W.T., c. 21, B. 419.

428. Upon the seizure of any property under the writ ^^ j^,
hereinbefore described the person in whose i>068ession it SgivSg
was at the time of seizure may have the same returned to f^^^ f
him upon giving the sheriff sufficient security for or paying YSSToWmed.
into court an amount equal to its appraised value as shown

by the inventory prescribed by the next preceding rule.
N.W.T., c. 21, R. 420.

429. Unless the property seized is redelivered or ^^^i^'J^'^^'^riff

Siished by the sheriff under any of the provisions hereof he toehold until

Online LibraryYukon TerritoryThe consolidated ordinances of the Yukon Territory, 1902,: being a ... → online text (page 28 of 77)