Remedy in

against per

sons wasting

or injuring property sub

ject to hypo

thec.

them or for their benefit, or was not continuing to carry on his trade, then the Defendant shall be discharged from custody by the order of such Judge.

49. If any personal hypothecary debtor or tiers détenteur damages given in possession of any immoveable property on which there exists any privileged claim or hypothec, personally or by the intervention of others, wilfully and with intent to defraud the party having such privileged claim or hypothec, injures, wastes or diminishes the value of such property by destroying, carrying away, or selling any house, outhouse or building or deteriorating the same, or by destroying, carrying away or injuring any timber or fence, or any fixture in any house or building on the said property, he may be sued in damages by such privileged or hypothecary creditor whether the sum secured by such privilege or hypothec be or be not then payable or exigible, Amount of and in such action the Plaintiff may recover from the Defendamages : dant, with condemnation to contrainte par corps, damages equal corps allowed. to the diminution of value occasioned by such act of the Defendant as aforesaid, or to the amount of the privileged claim or hypothec if such amount be less than such diminution of value, but the amount so recovered shall be secured by the said privilege or hypothec, and when paid shall go in discharge or in diminution of the same.

Contrainte par

made.

Capias ad res- 50. If the Plaintiff in any such case as last aforesaid shall pondendum state in an affidavit to be made in manner provided by law as remay issue in certain cases: gards affidavits for obtaining Writs of Capias ad respondendum, Affidavit to be that the amount secured by his privileged claim or hypothec exceeds ten pounds currency, and that the Defendant, being such hypothecary debtor or tiers détenteur, is with the intent to defraud the Plaintiff, personally or by the intervention of others, injuring, wasting or diminishing in value the immoveable property subject to such privilege or hypothec, or is about so to injure, waste or diminish the value thereof, to an amount exceeding ten pounds currency, by destroying, carrying away or selling some house or out-house or other building thereon, or by wilfully injuring or deteriorating the same, or by destroying or carrying away any timber or fence, or any fixture in any house or building on such immoveable property, a Writ of Capias ad respondendum may issue against such Defendant, in like manner and with the like effect as in other suits in which such Writ may issue.

fendant on

ty; or if the affidavit

Proviso, for Provided always, that such defendant may be released from release of de- confinement at any time before judgment, upon giving security giving securi- or bail, in like manner and upon like conditions as other defendants arrested upon Capias ad respondendum; and if upon summary petition of such defendant, the grounds stated in the affibe proved un- davit appear to any Judge of the Superior Court to be insufficient, or if it be proved to the satisfaction of any Judge of the Superior Court sitting at the place where such Writ of Capias

true.

ad

ad respondendum issued, that the allegations of the affidavit on which such Writ was obtained were false in any essential particular, the Defendant may be discharged from custody by the order of such Judge.

the Sheriff,

chaser, retain

final distribu

51. When any party having a privilege of bailleur de Party oppofonds, or other privilege or hypothec on any real property privilege of sant having seized and advertised to be sold by any Sheriff under any bailleur de Writ to him directed, has filed his opposition at the Sheriff's fonds on proOffice according to law before the day on which the writ is perty sold by returnable, or before the actual return of such writ, with may, if he be the titles, documents and certificates of registration requisite comes the purto support his claim,-then if such party becomes the purchaser of her an amount not the whole or of any part of such real property, he may retain in exceeding his his hands so much of the purchase money as shall not exceed claim, until the sum due and unsatisfied on the said privilege or hypothec tion of the and for which his opposition is so filed, until the return of the proceeds. Writ shall have been made by the Sheriff and the Court to which it is returnable shall have ordered a final distribution of the proceeds, on which such purchaser shall forthwith pay into the hands of the Sheriff the sum by which his purchase money shall exceed the sum decreed by such order of distribution to be payable to such purchaser, and upon such payment the Sherill shall execute to such purchaser aforesaid, a sufficient Deed of Sale of the property so by him purchased: Provided Proviso, for always, that any such party so becoming such purchaser shall security. give good and sufficient security to the Sheriff, for insuring the damages that inay result to any party concerned, in case of the non-payment of the sum which such purchaser shall be subjected to pay to the Sheriff after such order of distribution.

saisie, may

advance for

his costs.

And ex- so again

when the first sum is ex

52. It shall be lawful for any Sheriff, before executing any Sheriff before seizure of any kind under any process to him directed (whether executing any suisiv-arrel before judgment, seizure after Judgment, or saisie require an revendication or entièrcement) to demand and receive in advance from the party at whose instance the seizure is to be made, or his Attorney ul litem, such sum as shall by any one of the Judges of the Superior Court or by the Prothonotary of the district in which the process for the seizure issued be deemed sufficient for the safe keeping of the eflects and moveable property seized; and when and as ofen as the sum so advanced shall Le pended, such Sheriff may, on presenting a summary petition to any one of the Judges of the Superior Court or to the Pro- pended. thonotary of the District where the seizure has been made, obtain an order from such Judge or Prothonotary upon the party at whose instance the seizure was made, for the payment in advance of such further sum as by the said Judge or Prothontry shall be deemed sufficient for the safe keeping of the elects and moveables seized; and service of such petition and order shall in every instance be made upon the Attorney ad litem of the party seizing ---And in default of such payment in In default, advance within twenty-four hours after the said petition and discharged,

order,

seizure to be

and Sheriff exonerated.

Fheriff to whom any

um is due for such costs

takes effect, to have a like

remedy.

In default,

order, the seizure shall be discharged and such Sheriff exonerated from all liability to any person or party whomsoever.

And it shall also be lawful for any Sheriff to whom at the time when this Act comes into force, any sum of money is due on any seizure then pending, for costs and disbursements when this Act incurred for the safe keeping of any effects or moveable property, upon presenting a summary petition to any Judge of the Superior Court, or to the Prothonotary of the District where the seizure was made, stating the amount due to him as aforesaid, to obtain an order from such Judge or Prothonotary upon the party at whose instance the seizme was made, for the payment of the sum so due to him ;--Service of such petition and order shall be made upon the Attorney ad litem of the seizing party, and in default of payment of the said sum within the time fixed seizure to be by the said Judge or Prothonotary in such order, the seizure shall be discharged and such Sheriff exonerated from all liability to any person or party whomsoever, but such Sheriff shall nevertheless retain all his legal rights and remedies for recovering the costs and disbursements then due to him by reason of such seizure from any party who was by law liable for the same ;-And if in any such pending case the Sheriff is paid the amount of his fees and disbursements then incurred, he may thereafter demand and obtain in advance in the manner hereinbefore provided, any further sum of money required for the safe keeping of the effects and moveable property seized.

discharged,

and Sheriff exonerated,

Advance for any future costs.

Then the Sheriff has

failed to make

or renew any list of jurors in time, Judge may order it to be made within

a time to be fixed.

Lists made

under such order to be valid.

53. Whenever from any cause whatever, the several Lists of Jurors which the Sheriff is by law required to make or renew, have not been made or renewed for any District in the manner and within the period limited by law, then as soon as the fact shall be made known by the Sheriff, Prothonotary, Clerk of the Peace or of the Crown, to any Judge of the Court of Queen's Bench for Lower Canada, or any Judge of the Superior Court when in such District, or whenever the fact has come to the knowledge of such Judge, he shall order the Sherit of such District to make or renew the Lists of Jurors for the same, or such of them as have not been made or renewed as aforesaid, and shall by such order fix a period within which such List shall be made or renewed; and if such order be not complied with, another may be made by the same or any other Judge in like manner until the said Lists are duly made or renewed:

The Lists made or renewed under any such order shall then be of the same force and effect as if originally made within the time prescribed by law, and shall be deposited, dealt with and used as if so made, but shall remain in force only during the same period as if they had been made or renewed at the time prescribed by law, and Lists shall be again inade or renewed accordingly at the expiration of such period:

The

The cost of making or renewing any Lists of Jurors under Costs. such order as aforesaid, shall be borne by the Sheriff in default, unless he has some valid excuse for not making or renewing the same at the time prescribed by law :

But nothing in this section shall relieve the Sheriff from any Sheriff not penalty or liability incurred by his default to make or renew relieved from any such List at the time prescribed by law. penalty.

served when

54. Whenever any writ, subpoena or other process, op- How process, position, judgment, order, rule, notice or proceedings emanating &c., may be from the Superior or the Circuit Court, or from any Judge, or the law makes incident to any suit or proceeding in either of the said Courts, no special prorequires to be served upon any party or person residing or being vision. at the time in another district, then if there is no special provision of law regulating the manner in which such service is to be made, it may be made by any Bailiff of the Superior Court for such other District, who shall make the service and return required, in like manner and with like effect as it would have been made by a Bailiff for the District in which such writ, subpoena or other process, opposition, judgment, rule, order, judgment, notice or other proceeding originated, if the party or person on whom the service is made had been resident or had Provided always, that any limited in cerbeen then present in such District. Bailiff of the Superior Court for the District in which such tain cases. Writ, Subpoena or other process, opposition, judgment, order, rule, notice or proceeding, issued or is made, rendered or had, may serve the same in any other District, but shall be entitled to no more costs or emoluments for so doing, than a Bailiff of the District where the service is made, residing nearest to the place of such service would have been entitled to for so doing.

Proviso: : costs

than that in which they

are issued

55. Notwithstanding any thing to the contrary in the Service of twentieth section of the Lower Canada Judicature Act of writs of summons only, in 1849, chapter thirty-eight, any writ of summons only (but not districts other any writ of capias ad respondendum, saisie-arrêt before judgment, saisie gagerie or saisie revendication) issuing out of the Superior Court in any District, but to be served wholly or partly in some other District, may be addressed to and returned by any Bailiff of the said court for the District in which the writ is to be served, or by any Bailiff of the said court for the District in which the writ issues, but such last mentioned Bailiff shall be entitled to no more costs and emoluments for serving and returning the same, than a Bailiff for the District in which the service is made and residing nearest to the place of service would have been entitled to for so doing; And any writ of And in the summons ad respondendum issuing out of the Circuit Court Circuit Court. in any District to be executed in any other District, may be served and returned in such other District by a Bailiff of the Superior Court for the District in which the writ issues, but such last mentioned Bailiff shall be entitled to no more costs and emoluments for serving and returning the same, than a

Bailiff

Service in matters of

Bailiff for the District in which the service is made and residing nearest to the place of service, would have been entitled to for so doing.

56. In matters of folle enchère in the Superior or Circuit folle enchère. Court, any notice or any rule or order required to be served upon any purchaser (adjudicataire) of any personal or real property sold by virtue of a writ or order of execution, shall be well served upon such purchaser when left for him at the office of the Prothonotary or of the Clerk (as the case may be) of the Court in which such notice is given or such rule or order has issued, if the purchaser do not reside in the District in which the sale or adjudication was made; But this section shall not apply to any pending matter or case of folle enchère.

Execution against the

body may is

sue out the

Circuit Court

in certain

cases.

57. It shall be lawful for the Circuit Court sitting in any District, County or Circuit, to award any execution against the body of a person residing in a District, not including such District, County or Circuit, in any case where such execution is by law allowed; Such execution shall be directed to the Sheriff of the District in which such person resides, and such Sheriff shall execute the same and shall convey the body of such person to the Common Gaol of the District wherein such person shall be arrested; And such execution shall be executed in the same manner and to the same effect as an execution issued in the Superior Court in a District against the body of a person residing in another District would have to be executed under the thirty-ninth Section of the ordinance of the Governor and Legislative Council of the Province of Quebec, twenty-fifth George the third, chapter two.

Writs of Sum- 58. In any suit or action brought or to be brought mons may be served in Upagainst any person who shall have left his domicile in Lower per Canada in Canada, or against any person who shall have had no domicile certain cases, in Lower Canada, but when such person shall have personal and by whom and in what or real property therein, or the cause of such suit or action shall have arisen within Lower Canada, then if such person be manner. a resident of or is known to be then in Upper Canada, it shall be lawful for any Judge of the Superior Court, or for the Prothonotary of the Superior Court or Clerk of the Circuit Court at the place where the action is brought, on being satisfied of the facts by affidavit or otherwise, to sign an order to be indorsed on the Writ of Summons in such suit or action, in the following words, "this Writ may be served in Upper Canada," and such Writ may then be served in Upper Canada by any Bailiff entitled to serve process of the County Court of the County in which the service shall be made or by any literate person, and the affidavit of such bailiff or of such literate person, made before some Commissioner authorized to receive affidavits to be used in the Superior Court or Circuit Court for Lower Canada, or any Justice of the Peace for the County in which the service is made, in the form of the Schedule D, to this Act, or to

the