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Archives provinciales du Nouveau-Brunswick

Fort Havoc (Wallace Hale)

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CAP. XII.

An ACT subjecting Real Estates in the Province of New-Brunswick to the payment of Debts, and directing the Sheriff in his proceedings thereon.

Preamble.

 
WHEREAS it is highly reasonable and just that the real Estate of every person or persons in this Province should be subject to the payment of his, her or their debts due to all and every of his, her or their Creditors, wheresoever resident.

Lands, &c. liable to be seized &c. for Debts.

 

 
I.   Be it enacted by the Governor, Council, and Assembly, That from and after the publication hereof, the Houses, Lands, real Estate and Hereditaments, situate or being in any part of this Province, belonging to any person or persons whatsoever, indebted, shall be liable to and chargeable with all just debts and demands, of what nature or kind soever, owing by or due from any such person to His Majesty, or any of his subjects, and shall be and are hereby made chattels for the satisfaction thereof in like manner as personal Estates within this Province are seized, sold or disposed of, for satisfaction of debts.

Sheriffs or other officers to seize and sell Houses, Lands, &c. on fieri facias or other Writ where personal Estate cannot be found.

 

 
II.   Provided always, That every Sheriff, or other officer, to whom any Writ of fieri facias, or other Writ shall be directed, shall first seize and take so much of the personal Estate of the Defendant or Defendants as may be sufficient to satisfy the sum justly due to the Plaintiff, with costs of suit, which shall be indorsed on the said execution before the sealing thereof, if so much within his Bailiwick he can find, and if so much he cannot so find, then, and in that case the Sheriff, or other officers shall seize, sell and dispose of so much and no more, as near as may be of the Houses, Lands, real Estates and Hereditaments of the Defendant of Defendants as will be sufficient to satisfy the whole, or the residue, as the case may require, of the monies so as aforesaid from him or them due, and on such Writs payable.

Houses, Lands, &c., to be advertised six months before sale.

 

Sale to be between the hours of 12 and 5 p. m.

 
III.   And be it further enacted, That before any sale shall be made by any Sheriff, or other officer of the Houses, Lands, real Estate or Hereditaments of any person or persons, he shall first advertise the time and place of such intended sale at least six months before he shall make the same, in the City, Town or Parish where the premises are or shall be, in three or more of the most public places of the County wherein such Estate doth lay, and then and there between the hours of twelve and five in the afternoon shall sell the same to the highest bidder.

Owners of Houses, Lands, &c. to have their election which part to be sold.

 

 

 
IV.   And be it further enacted, That every Defendant and Defendants whose Houses, Lands, real Estate or Hereditaments shall or may hereafter be taken in execution, shall and may have free election by himself, his Attorney, his Heirs or Executors, at any time twenty days before sale thereof is as aforesaid to be made and signify in writing to the officer who is to make the same sale what part or portion of the same Houses, Lands, real Estate or Hereditaments shall be sold, if a part or dividend thereof may be sufficient to satisfy the monies on such execution due and payable as aforesaid; which part, if that shall be sufficient and no other, the Sheriff or other officer shall on such Writ or Execution sell or dispose of.

Sheriff or other Officer to make conveyance of Houses, Lands, &c. sold on execution.

 

 

 
V.   And be it further enacted, That when any Houses, Lands, real Estate or Hereditaments shall be sold in manner aforesaid, the Sheriff or other officer that sold the same, shall in his own name make unto the purchaser thereof, as good and sufficient a conveyance for the Houses, Land, real Estate or Hereditaments purchased as aforesaid, as the owner of such Houses, Land, real Estate, or Hereditaments might or could have thereof made at or before the time of the judgment therein reciting the execution or executions, or other process requiring such sale to be made, by virtue whereof the premises were sold as aforesaid, by which Deed the purchaser or purchasers shall be and are hereby declared to be vested in as good and perfect an Estate as the owner of such Houses, Lands, real Estate or Hereditaments was seized of or entitled unto, at or before the said Judgment, and as fully to all intents and purposes, as if the person against whom such Writ of Execution shall be granted had sold such Lands and Premises to such purchaser or purchasers, and signed, sealed and delivered a good deed for the same, and received the consideration money himself.

Purchasers shall hold the premises free of Judgments, &c.

 
VI.   And be it further enacted, That the Purchaser, his Heirs and Assigns, shall hold the premises purchased as aforesaid, free and clear of all other judgments, recognizances, statutes merchant and statutes staple whatsoever, by virtue whereof no execution has been executed upon the real Estate so purchased, any law, usage or custom to the contrary notwithstanding.

 
 
VII.   [Repealed by 8 G. 4, C. 7, S. 1.]

Reversal of Judgment not to operate against bona fide purchasers;

 

But Plaintiff shall restore in value to Defendant.

 
VIII.   And be it enacted, That if any Judgment or Process by virtue of which such sale shall be made as aforesaid, and certified and recorded as aforesaid, shall happen to be reversed for error, yet the same reversal shall not be given in evidence, or be of force against any bona fide Purchaser under the said Judgment or Process so certified and recorded as aforesaid   but the Purchaser, his Heirs, Executors, Administrators or Assigns, shall hold the Land or other thing so bona fide purchased, notwithstanding a reversal of the Judgment or Process after his purchase, and such reversal shall only operate against the Plaintiff, his Heirs, Executors and Administrators, to compel him or them to restore in value to the Defendant for what he lost.

 
 
IX.   [Obsolete by reason of the repeal of S. 7.]

 

The same priority on Executions against real as personal Estates.

 
X.   And in the case where sundry executions or other Processes have issued, requiring the sale of real Estate and sufficient cannot be levied of the personal and real Estate, to satisfy all the sums commanded to be levied.   Be it enacted, That such priority and preference as the Law gives in the case of Executions, against personal Estate only shall be given in the case aforesaid, and all disputes on that head shall thereby be regulated, adjudged and determined.

Damages and double costs for neglect of duty.

 

 
XI.   And be it enacted, That if any Sheriff or other officer, shall, in any matter or thing, act or do contrary to his duty hereby required and directed, or contrary to the liberty and election hereby given to the Defendant, or shall refuse to return the overplus money arising from such sale, if any shall remain in his hands, such Defendant or Person injured thereby, shall and may maintain his, or their action on the case, against such Sheriff or other Officer in any Court of Record within this Province, which shall or may have cognizance of the same, wherein he, she or they shall recover the damage by him, her or them sustained, with double costs of suit.

________________

C. 12. Anno XXVI. Geo. III.   A. D. 1786.


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