Civil Process Act 1839


Published: 2019-08-02

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Civil Process Act 1839

An Act to give further powers to the Sheriff of the Island of Van Diemen's Land

[Royal Assent 29 June 1839]

[Preamble Repealed by 25 Geo. V No. 78 ]

Be it enacted by His Excellency Sir JOHN FRANKLIN, Knight Commander of the Royal Hanoverian Guelphic Order, Knight of the Greek Order of the Redeemer, and a Captain in Her Majesty's Royal Navy, Lieutenant-Governor of the Island of Van Diemen's Land and its Dependencies, by and with the advice of the Legislative Council that:

1.   Extension of Sheriff's powers under fieri facias

[Section 1 Amended by 25 Geo. V No. 78 ]It shall be lawful for the Sheriff or other officer to whom any writ of fieri facias against lands and chattels shall be issued to seize, attach, or take in execution under such writ property, both real and personal, of every nature and kind, and every right, title, or interest of any kind whatsoever in or to the same or any part thereof in whose hands soever any such property shall then be, and whether such property, title, or interest shall be legal or equitable, or the same or any part thereof shall be moneys or bank shares or other such interest or shall be of the nature of a "chose in action" only, and to cause all such property to be sold under such writ as in ordinary cases. Provided always that, in the case of any such "chose in action", no actual seizure shall be essential, but the same may be attached by notice given to the parties or party therein interested, and every person liable upon or under such "chose in action" shall, after receipt of any such notice, become liable in the same manner and to the same extent to the Sheriff by virtue of such attachment under such writ. Provided also that nothing in this section shall be construed to authorize the Sheriff's taking in execution any implement of trade or any deed or writing not being in fact in its nature saleable or convertible into money or given as a security for money or to authorize any search which is not now by law authorized, whether of the person or otherwise.

2.   Disposal of choses in action

[Section 2 Amended by 25 Geo. V No. 78 ]No debt shall be liable to be so attached or taken in execution unless the same be of some certain and liquidated amount and be secured by some bond or other deed in the possession or power of the party against whom the execution issued or some promissory note or bill of exchange of which such party shall then be the holder, and no such debt or other mere "chose in action", after being so attached or taken in execution, shall be actually sold or be otherwise disposed of by the Sheriff except by order of a judge, which order may at any time be made on the application in a summary way either of the plaintiff or defendant in such writ or of the Sheriff, and such judge shall, in all such cases in a summary way, give such directions to the Sheriff and to all parties interested therein as he shall think proper – And it shall be lawful for such judge at any time in a summary manner either to authorize an action for the amount of any such debt so taken in execution to be brought in the name of the party suing forth the writ of execution or to cause the debtor to be summoned to attend such judge to show cause why he should not forthwith pay the same amount to such party, and, if no sufficient cause be shown, to order such payment accordingly and to enforce such order, together with all costs attending the same, by an attachment for a contempt, as in other cases.

3.   By Sheriff's sale all a defendant's right and interest to pass

[Section 3 Amended by 25 Geo. V No. 78 ]
(1)  [Section 3 Subsection (1) amended by No. 19 of 1980, s. 171 and Sched. 1, Pt. 1 ]Subject to this section, in every case of sale of any property so attached or taken in execution by the Sheriff under any writ of fieri facias, it shall be sufficient for such Sheriff or his deputy to put up for sale, and to sell and dispose of all the right, title, and interest of the party against whom such writ issued in and to such property, and the assignment by such Sheriff of such right, title, and interest to the purchaser thereof at such sale by writing under his hand in a short form of words, attested by one witness, reciting the issue of such writ of fieri facias, and stating the time and place of such sale and that the same was in pursuance of such writ, shall have the effect of immediately and absolutely vesting in such 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 and interest and of recovering and possessing the property to which the same shall relate, together with every title-deed, conveyance, document, 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 writ had issued.
(2)  Where any such assignment relates to real estate, the same shall be registered in like manner as is provided with respect to deeds and conveyances by other persons affecting real property.
(3)  [Section 3 Subsection (3) inserted by No. 19 of 1980, s. 171 and Sched. 1, Pt. 1 ]Where land sold is under the Land Titles Act 1980 , the legal estate in the land does not pass to the purchaser by virtue of an assignment under this section, but on the registration of a transfer under section 61 of that Act .

4.   Estates tail, &c., may be taken in execution

[Section 4 Inserted by 25 Geo. V No. 78 ]The powers conferred by this Act upon the Sheriff or other officer to whom any writ of fieri facias against lands and chattels is issued shall extend and apply not only to the estates and interests in land now liable to be taken in execution and dealt with under the said Act, but also to every estate and interest in any lands or hereditaments over which the person against whom such writ is issued has any disposing power which he might, without the assent of any other person, exercise for his own benefit; and every taking in execution, sale, and assignment by the Sheriff of any such estate or interest in accordance with the provisions of this Act, shall be binding as against the person against whom such writ issued, and against all persons claiming under him, and against the issue of his body, and against all persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or interest in or out of such lands or hereditaments.

5.   Registered judgments to bind estates tail, &c.

[Section 5 Inserted by 25 Geo. V No. 78 ]Every registered judgment entered up in the Supreme Court shall have the same force and effect, with reference to such estates and interests as are lastly hereinbefore mentioned, as it now has upon other estates and interests in land of or to which persons against whom such judgments are entered up are seized or entitled.

6.   Consent may be given to sale by Sheriff

[Section 6 Inserted by 25 Geo. V No. 78 ]In every case where the person against whom any writ of fieri facias is issued has any such disposing power as aforesaid which he cannot, without the assent of some other person exercise for his own benefit, then, if such other person by deed signifies his assent to the exercise of such disposing power by the Sheriff, the Sheriff shall, to the extent of such assent, have the same powers as if no such assent were required to the exercise of such disposing power.

7.   Estates tail, &c., on insolvency to pass to assignee

[Section 7 Inserted by 25 Geo. V No. 78 ]Every such estate and interest in lands and hereditaments as is hereby made subject to be taken in execution, sold and assigned by the Sheriff shall, in case the person who has the disposing power over the same is declared insolvent, pass to his assignee to the same extent and subject to the same conditions as if the Sheriff, by virtue of a writ of fieri facias against such person, had taken in execution, sold, and assigned such estate and interest to such assignee; and, if the consent of any person is required to the exercise of any such disposing power, then, if such assignee obtains the consent of such person by deed to the exercise of such power by such assignee, such assignee shall take the same estate and interest as if the Sheriff had taken in execution, sold, and assigned such first-mentioned estate and interest to such assignee with the consent of such person testified by deed.

8.   Short title

[Section 8 Inserted by 25 Geo. V No. 78 ]This Act may be cited as the Civil Process Act 1839 .