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A.D. 1896.

Purchaser of

Local Courts.

dispose of any of the goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade to the value of Five Pounds, which shall to that extent be protected from such seizure), and also any money or bank notes, and any cheques, bills of exchange, promissory notes, bonds, specialties, or securities for money, and any interest legal or equitable in any personal estate whatsoever belonging to any such person in whose hands sooever any of such things may be, and also any scrip or share or shares in any Company belonging to the person against whom such warrant shall have issued; and in case the personal property is not sufficient to satisfy the execution, may also seize and take in execution and sell any real property of such person or any interest therein, whether legal or equitable.

(2.) In every case of sale of property taken in execution it shall be sufficient for the Bailiff to put up for sale and to sell and dispose of all the right, title, and interest of the party against whom the execution issued in and to such property, and the Bailiff, at the request of the purchaser of any right, title, and interest sold either before or after the passing of this Act, and upon full payment of the purchase money, shall execute an assignment of the said right, title, and interest, reciting the issue of the warrant and the time and place of sale, and that the same was in pursuance of such warrant, and such assignment shall have the effect of immediately and absolutely vesting in the purchaser all such right, title, and interest, from the time when the property was taken in execution as fully and effectually to all intents and purposes as the same then were vested in such party, and such purchaser shall have and exercise thereafter in his own name and to his own use the same means of enforcing such right, title, and interest, and of recovering and possessing the property to which the same shall relate, together with every title deed, conveyance, document, or power, matter, right, or thing incident thereto, as such party himself at the time of such taking in execution might have had and exercised in case no such Warrant of Execution had issued.

(3.) And in the case of shares or scrip in any Company, the Bailiff or Officer shall immediately, or as soon after such sale as may be, by a sale note, transfer every such share to the purchaser thereof, and such sale note shall be a good, valid, and legal transfer of the right, title, and interest of the party against whom such execution has issued in such scrip or shares to all intents and purposes as if such transfer had been made by the holder of any such share to such purchaser, any law or regulation to the contrary notwithstanding; and the Manager or other proper officer of the Company shall, on application, register and give effect to such sale note, and do all things requisite and necessary for completing the title of the purchaser to the right, title, and interest purchased by him.

(4.) Any deed or document made before the passing of this Act purporting to be an assurance by a Bailiff to a purchaser of property sold by such Bailiff under or by virtue of a warrant of execution issued under any Act heretofore in force relating to the recovery of small debts, shall be taken as having been executed or signed by such Bailiff under powers of assurance similar to those conferred on a Bailiff by this Act.

103 The purchaser of any cheques, bills of exchange, promissory securities scized notes, bonds, specialties, or other securities for money which have been

Local Courts.

sue in name of

so seized or taken as aforesaid may sue in the name of the defendant, A.D. 1896. or in the name of any person in whose name the defendant might have in execution may sued, for the recovery of the sums secured or made payable thereby, when the time of payment thereof has arrived, and may, by leave of defendant. the Court or a Judge, endorse any such cheques, bills of exchange, or promissory notes payable to or to the order of the payee, and such endorsement shall be a good discharge to any banker or other person paying the same.

Court.

Rule 13.
Form 27.

104 In all cases where a warrant of execution has issued against the How execution personal property or lands of any party, and such personal property may be had at a or lands are or are believed to be nearer to another Court than to the distance from the Court out of which the process has issued, it shall be lawful for the Bailiff of the latter Court to send such warrant of execution to the Bailiff of such other Court, and thereupon such last-mentioned Bailiff is hereby authorised and required to act in all respects as if the warrant of execution had been directed to him by the Court of which he is the Bailiff, and shall, within such time as may be specified in the Rules of Practice, return to the Registrar of the Court from which the same issued what he has done in the execution of such process, and in case a levy has been made shall, within such time as may be specified in the Rules of Practice, pay over all moneys received in pursuance of the warrant to the Registrar of the Court from which the same issued.

Power to suspend Execution.

105 If at any time it appears to the satisfaction of the Court, or, when the Court is not sitting, of the Judge of the Court, by the oath of any person or otherwise, that any defendant is unable, from sickness or other sufficient cause, to pay and discharge the debt or damages recovered against him, or any instalment thereof ordered to be paid as aforesaid, it shall be lawful for such Court or Judge, in its or his discretion, to suspend or stay any judgment, order, or execution given, made, or issued in such action, for such time and on such terms as the Court or Judge thinks fit, and so from time to time until it appears by the like proof as aforesaid that such temporary cause of disability has

ceased.

Power to suspend execu

tion in certain cases.

Form 23.

Sales of Property taken in Execution.

tion.

106 Every sale of any property other than real property taken in Sales of property execution shall be made not less than Five days, and of real property taken in execunot less than Twenty-one days, after the levy by the Bailiff, by public auction, without being licensed as an auctioneer, after having been duly Rules 76-79. advertised in such manner and for such time as may be directed by the Rules of Practice: Provided that goods of a perishable nature may be sold immediately on seizure; and any personal property taken in execution may, with the consent in writing of the execution debtor, be sold by the Bailiff by private contract at any time after seizure.

107 Section One of the Act of the Eighth year of the Reign of When goods Queen Anne, Chapter Fourteen, shall not apply to Goods taken in seized under execution under the Warrant of a Court held under this Act, but process of Court

A.D. 1896.

landlord may claim certain rent in arrear.

Execution of process.

Local Courts.

the Landlord of any Tenement in which any such Goods shall be so taken may claim the rent thereof at any time within Five clear days from the date of such taking, or before the removal of the Goods, by filing in Court a statutory declaration or affidavit by himself or his Attorney, which shall state the amount of rent claimed to be in arrear, and the time for and in respect of which such rent is due; and if such claim be made, the Bailiff or Officer making the levy shall, in addition thereto, distrain for the rent so claimed and the costs of such Distress, and shall not within Five days next after such Distress sell any part of the Goods taken unless they be of a perishable nature, or upon the request in writing of the party whose Goods shall have been taken, and the Bailiff shall afterwards sell such of the Goods under the Execution and Distress as shall satisfy first the costs of and incident to the Sale, next the claim of such Landlord not exceeding the rent of Four weeks where the Tenement is let by the week, the rent of Two terms of payment where the Tenement is let for any other term less than a year, and the rent of one year in any other case, and lastly the amount for which the Warrant issued; and if any Replevin be made of the Goods so taken, the Bailiff shall notwithstanding sell such portion thereof as will satisfy the costs of and incident to the Sale under the Execution and the amount for which the Warrant issued; and in either event the overplus of the Sale, if any, and the residue of the Goods shall be returned to the Defendant, and the Poundage of the Bailiff for keeping possession, appraisement, and sale under such Distress shall be the same as would have been payable if the Distress had been an execution of a Court held under this Act, and no other Fees shall be demanded or taken in respect thereof. Provided always that it shall be lawful for the Bailiff to withdraw if the amount of rent claimed shall exceed the total value of the goods found on the premises.

108-(1.) All process issued out of any Court shall be served and executed by a Bailiff of such Court, or of any other Court, in the same manner in all respects as process of a similar nature issuing out of the Supreme Court may be or might have been served or executed by the Sheriff; and every such Bailiff shall, as to the execution of process issuing from another Court, be and he is accordingly hereby constituted the Bailiff of such other Court, and shall be subject to the order and direction of such Court and the Judge thereof; and every Bailiff shall, for the purpose of enabling him to perform the duties of his office, have the same powers and authorities, and shall in the exercise of the duties of his office be subject to the same liabilities, as the Sheriff.

(2) When any Writ of fieri facias or Warrant of Execution for a sum not exceeding Fifty Pounds for debt and costs is issued out of the Supreme Court in any action or other proceeding brought or taken in the said Court otherwise than under the provisions of this Act, and the lands or chattels of the person against whom such Writ or Warrant is issued are nearer to the place at which a Court is held under this Act than to either Hobart or Launceston, the Sheriff may forward his Warrant to the Bailiff of such last-mentioned Court, and such Warrant shall thereupon be executed in the same manner as a Warrant of Execution is now executed by the Sheriff's Bailiff, and all moneys received in pursuance of such Warrant shall be paid to the Sheriff, and the Sheriff shall not be answerable for the neglect or wrongful act of any such Bailiff.

Local Courts.

A.D. 1896.

Execution superseded by Payment.

and costs.

109 In or upon every Warrant of Execution the Registrar of Execution to be the Court shall cause to be inserted or endorsed the sum of money and superseded on costs adjudged, with the costs of such warrant and the execution payment of debt thereof; and if the party against whom such execution is issued before an actual Sale thereunder pays or tenders or causes to be paid or tendered to the Registrar of the Court out of which such Warrant of Execution has issued, or to the Bailiff holding the Warrant of Execution, such sum of money and costs as aforesaid, or such part thereof as the person entitled thereto agrees to accept in full of his debt or damages and costs, together with the costs for the execution, such execution shall be superseded, and possession of the property levied upon shall immediately be given up.

Reimbursement of Expenses of Execution to Bailiff.

and cannot obtain same under the

110 Where a Bailiff has necessarily incurred expenses in the execution Where Bailiff put of a Warrant of Execution or Warrant of Commitment, and is unable from to expenses in insufficiency of personal property or lands of the party against whom executing warrant the execution issued, or other cause, without his own default, to obtain reimbursement of such expenses, by means of such execution, within execution, he One month after the issue of the Warrant, such expenses or the shall be repaid by amount thereof unpaid shall be paid to the Bailiff by the party at party issuing whose suit the execution issued; and on non-payment of the same by such last-mentioned party on demand, the Court shall, in a summary way ascertain the amount of such expenses, and enforce payment thereof by such last-mentioned party to the Bailiff by the same means as are herein provided for enforcing a judgment of the Court; and such amount shall be recoverable by such last-mentioned party against the opposite party as costs in the cause.

Provided, that the Registrar may require the Plaintiff to deposit with him a sum sufficient to cover the expenses of the execution of a Warrant of Execution or Warrant of Commitment before proceedings are taken to put the same in force.

Interpleader.

execution.

111 Where any claim shall be made to or in respect of any personal Claimant of goods property taken in execution under the process of any Court held under taken in execution this Act, the claimant may deposit with the Bailiff either the amount values or pay costs must deposit their of the value of the property claimed, such value to be fixed by appraise- of keeping ment in case of dispute, to be by such Bailiff paid into Court to abide possession. the decision of the Court or Judge upon such claim, or the sum which the Bailiff shall be allowed to charge as costs for keeping possession of such property until such decision can be obtained, or may give to the Bailiff in the prescribed manner security for the value of the property claimed; and in default of the claimant so doing the Bailiff shall sell such property as if no such claim had been made, and shall pay into Court the proceeds of such sale to abide the decision of the Judge.

112-(1.) If any claim shall be made to or in respect of any personal Bailiff may property taken in execution under the process of any Court held under interplead.

A.D. 1896.

Forms 36-41.
Rules 88-90.

Order for trial of conflicting claim by actions.

Claims to personal property taken in execution may be

Local Courts.

this Act, or in respect of the proceeds or value thereof, by any person, it shall be lawful for the Registrar upon the application of the officer charged with the execution of such process, as well before as after any action brought against him, to issue a summons calling before the Court or a Judge as well the party issuing such process as the party making such claim, and the Court or Judge shall adjudicate upon such claim and make such order between the parties in respect thereof and of the costs of the proceedings as it or he shall think fit, and shall also adjudicate between such parties, or either of them, and the Bailiff or aforesaid officer with respect to any damage or claim of or to damages arising or capable of arising out of the execution of such process, and make such order in respect thereof and of the costs of the proceedings as to it or him shall seem fit and such orders shall be enforced in like manner as any order in any action brought in such Court, and shall be final and conclusive as between the parties, and as between them or either of them and the Bailiff or aforesaid officer unless the decision of the Court or Judge shall be in either case appealed from; and upon the issue of the summons any action which shall have been brought in any Court in respect of such claim, or of any damage arising out of the execution of such process, shall be stayed.

(2.) Provided always, that any Court or Judge before whom any person making such claim as aforesaid shall appear in answer to any summons calling upon him to support his claim may, in its or his discretion, order such person to make himself defendant in the same or other action, or to proceed to trial on one or more feigned issue or issues either in the Supreme Court in its superior jurisdiction, or in any Court held under this Act, and also to direct which of the parties shall be plaintiff and defendant respectively on such trial.

(3.) No claim as aforesaid to or in respect of any personal property taken in execution under the process of any Court held under this Act shall be valid, unless notice thereof be given to the bailiff or officer taking such property in execution within Ten days of such taking: Provided always, that the Court or a Judge may, on the application of the claimant, allow further time for making such claim, on such terms as shall seem just.

(4.) The proceeds of the sale of any personal property taken in execution shall be held by the Registrar until the expiration of the said period of Ten days pending any such claim as aforesaid.

113 All claims mentioned in the last preceding Section to or in respect of any personal property taken in execution may be made by made by telegram. telegram, and the delivery of the telegram to the Bailiff shall be held equivalent to the delivery of the signed copy thereof lodged in the telegraph office.

Sale of goods held under Bill of Sale, &c.

114 Where goods or chattels have been seized in execution by a Bailiff or other Officer under process of any Court held under this Act, and some third person claims to be entitled to such goods or chattels under a Bill of Sale or otherwise by way of security for a debt, a Judge of such Court may order a sale of the whole or part thereof, upon such terms as to payment of the whole or part of the secured debt or otherwise as such Judge thinks fit, and may direct the application of the proceeds of such sale in such manner and upon such terms as to such Judge seems just.

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