Page images
PDF
EPUB

Attachment of Debts.

Proceedings against the Garnishee.

The order for attachment being obtained must be served on, or a notice thereof given to, the Service of the Garnishee; for the service of the order or such notice thereof given in such manner as the judge may direct, is to bind such debts in his hands (s. 62).

order.

Proceedings where debt admitted.

Proceedings where debt disputed.

By the original order of attachment, or by any subsequent order, the Garnishee may be ordered to appear before the judge, or a master of the court, to show cause why he should not pay the judgment creditor the debt due from him to the judgment debtor, or so much thereof as may be sufficient to satisfy the judgment debt (s. 61).

If the Garnishee does not dispute the debt due or claimed to be due from him to the judgment debtor, he ought to pay the amount into court; for if he does not forthwith pay into court the amount due from him to the judgment debtor, or an amount equal to the judgment debt, or if he does not appear upon the summons, the judge may order execution to issue, and it may be sued forth accordingly, without any previous writ or process, to levy the amount due from the Garnishee towards satisfaction of the judgment debt (s. 63).

If, however, the Garnishee disputes his liability, he ought to appear upon the summons; and the judge, instead of making an order for execution, may order that the judgment creditor be at liberty to proceed against the Garnishee by writ, calling upon him to show cause why there should not be execution against him for the alleged debt, or for the amount due to the judgment debtor, if less than the judgment debt, and for costs of suit (s. 64). The proceedings upon such suit are to be the same, as nearly as may be, as upon a writ of revivor issued under "The Common Law Procedure Act, 1852."

Payment made by or execution levied upon Attachment the Garnishee will be a valid discharge to him of Debts. as against the judgment debtor to the amount paid or levied (s. 65).

A debt attachment book is to be kept at the master's offices, and copies of any entries made therein may be taken by any person (s. 66).

The costs of an application for an attachment of debts are in the discretion of the court or of the judge (s. 67).

CHAPTER VIII.—SUMMARY PROCEEDINGS IN COURT.

INCIDENTALLY to each step in an action, the summary jurisdiction of the court may be exercised in setting aside proceedings, or in giving authority to a party to take various steps which may be necessary in the cause, such as to inspect documents, to examine witnesses upon interrogatories, or the like. In the numerous proceedings of this nature, the court acts in a summary way upon motion, and the application is usually founded on the testimony contained in affidavits. If the application is opposed, it is resisted on evidence which is likewise brought before the court in affidavits.

"This species of evidence" (Second Report, p. 32) "is, of all others, the most unsatisfactory. "All the circumstances which give to the system "of English procedure its peculiar and charac"teristic merits,-viva voce interrogation, cross"examination, publicity, examination in the pre"sence of the tribunal, whereby an opportunity "is afforded of observing the demeanour of the "witness, are here wanting; and not only this, "but the testimony is often not even the sponta66 neous statement of the witness: the affidavit is "prepared for and sworn to by the deponent, "often without the sense of responsibility which "would be felt by a witness when delivering a "statement in his own words."

Not only is there no effectual mode of ascer- Affidavits. taining the means of knowledge, on which the conclusions sworn to have been arrived at by the deponent, but the manner of proceeding on motions founded upon affidavits has been found to be objectionable. Hitherto the party seeking the intervention of the court has been limited to the evidence adduced by him in the first instance, and been precluded from filing fresh affidavits in answer to those produced by his opponent. The latter might set up new facts, which the former could have refuted or explained; but he has been shut out from doing so, and was thus always at the mercy of his opponent, who had "the advantage of swearing last." The courts, on the other hand, in the case of conflicting affidavits, have always avoided the task of determining on which side the truth lay. The only question with them was, whether the affidavits, on the face of them, afforded an answer to the case set up by the party applying for their intervention. If they seemed to do so, the courts would not interfere. This system consequently has operated as a premium to unscrupulousness in the party swearing last, knowing the impossibility of his being contradicted. There was one farther inconvenience in the system hitherto in operation; a party requiring the evidence of an unwilling witness had no means of obtaining it no person (with the single exception of an officer of the court) could be compelled to give evidence by affidavit as he might be to give it orally in court.

The system, however, has by a few of the provisions of the new statute been completely altered.

Upon motions founded upon affidavits either party may now, with the leave of the court or a judge, make affidavits in answer to the affidavits of the opposite party, upon any new matter arising out of such affidavits (s. 45). Neither party can

Affidavits.

Examination of an unwilling witness.

now be sure of "the advantage of swearing last."

An unwilling witness can no longer withhold his testimony for any party requiring the affidavit of a person who refuses to make an affidavit, may apply by summons for an order to such person to appear and be examined before a judge or master, as to the matters concerning which he has refused to make an affidavit (s. 48); and the judge may, if he think fit, make such order for the attendance of such person for examination, and for the production of any writings or documents (s. 48). The examination is to be conducted, and the depositions taken down and returned, in the mode now used on vivâ voce examinations of witnesses (s. 49).

It has frequently happened that the intervention of the court has been refused, because, in the opinion of the court at the time, no sufficient ground was shown for its interference. This has involved a fresh application on amended affidavits, but often at great cost and delay. In some cases any such delay or expense may now be avoided; for upon the hearing of any motion or summons, the court or the judge, at their or his discretion, and upon such terms as they or he think reasonable, may, from time to time, order such documents to be produced, and such witnesses to appear, and be examined vivá voce, either before the court or judge, or before the master, as they or he think fit; and upon hearing such evidence, or reading the report of such master, the court or the judge may make such rule or order as may be just (s. 46).

The court or the judge may, by such rule or order, or any subsequent rule or order, command the attendance of the witnesses named therein, for the purpose of being examined, or the production of any writings or other documents (s. 47).

« PreviousContinue »