Collection Act

Short title

1 This Act may be cited as the Collection Act. R.S., c. 76, s. 1.

Interpretation

2 In this Act,

(a) "amount due on the judgment" includes the costs incurred subsequently to those forming part of the judgment, and which may be recovered by an execution issued upon the judgment;

(b) "creditor" means the person or corporation entitled to receive the amount due on the judgment;

(c) "debt" includes any item or part of the debt forming the subject of the judgment and includes alimony and maintenance;

(d) "debtor" means a person against whom a judgment is obtained;

(e) "examiner" means the functionary having jurisdiction to enforce and conduct an examination, make an order or issue a warrant under this Act;

(f) "judgment" means any adjudication, order or decree directing the payment of money, whether debt, damages, alimony, maintenance or costs obtained in any court in the Province or before a justice of the peace;

(g) "liability" includes part of a liability forming the subject of the judgment;

(h) "officer" means any of the officials who may execute a warrant or other process under this Act;

(i) "special examiner" means a special examiner under this Act. R.S., c. 76, s. 2.

Act does not apply

3 This Act shall not apply to the following cases:

(a) default in payment of a penalty, other than a penalty expressly made recoverable as an ordinary debt;

(b) default in payment of a sum in the nature of a penalty other than a penalty in respect to any contract;

(c) default by a trustee, or person acting in a fiduciary capacity and ordered to pay by a court of justice any sum in his possession or under his control;

(d) default by a solicitor in payment of costs when ordered to pay costs for misconduct as solicitor or in payment of a sum of money when ordered to pay the same in his character as an officer of the court making the order;

(e) default of a ratepayer to pay any rate or tax whatsoever. R.S., c. 76, s. 3.

Imprisonment for default

4 Subject to this Act, no person shall be arrested or imprisoned for default in payment of any judgment ordering or adjudging the payment of money. R.S., c. 76, s. 4.

Examination of debtor

5 (1) A judgment creditor, having an unsatisfied judgment, shall be entitled to institute proceedings against the debtor for an examination in respect to any of the following matters:

(a) the contracting of the debt or the incurring of the liability which forms the subject of the judgment;

(b) the disposition by the debtor of his property;

(c) the debtors present circumstances; and

(d) his present or prospective means of paying the debt.

Appointment of examiners

(2) The Governor in Council may appoint one or more persons to be functionaries respectively for the purposes of this Act in the City of Halifax, each functionary to be called "an examiner under the Collection Act" for the City of Halifax. R.S., c. 76, s. 5.

Proceedings to enforce examination

6 Proceedings upon a judgment to enforce an examination may be instituted in each of the following cases before one of the functionaries herein indicated and hereinafter called an "examiner":

(a) if the judgment was obtained in the Supreme Court, a county court or a court of probate, a commissioner of the Supreme Court residing in the county in which the debtor resides at the date of the application or, if he does not reside in the Province, a commissioner of the Supreme Court residing in the county in which the judgment was obtained, shall be the examiner;

(b) if the judgment was obtained in any city court, the judge of the provincial court, any other court officer appointed to preside in any such court or any such commissioner shall be the examiner;

(c) if the judgment was obtained in the court of, or before, a justice or justices of the peace, any justice of the peace for the county in which the debtor resides at the date of the application or, if he does not reside in the Province, any justice of the peace for the county in which the judgment was obtained shall be the examiner;

(d) in every case where a debtor resides in the City of Halifax at the date of the application, an examiner under the Collection Act for the City of Halifax and no other functionary shall, notwithstanding this Section, be the examiner. R.S., c. 76, s. 6.

Execution of warrants

7 All warrants or process under this Act may be directed to and executed by the officers herein named:

(a) the sheriff of any county, such sheriff and all other sheriffs in the Province or, generally, all sheriffs, and may be executed, whether directed to them or not, by any sheriff, or any deputy sheriff without authority from the sheriff of whom he is the deputy, and in any part of the Province, and whether or not the place in which the warrant or process is to be executed is within the bailiwick of such sheriff; or

(b) the police officers of any city or town, or the constables of any county, and may be executed whether directed to them or not, by any police officer or county constable, and whether or not the place in which the warrant or process is to be executed is within the place for which he is a police officer or con- stable, as the case may be. R.S., c. 76, s. 7.

Order for examination

8 An order for the examination of a judgment debtor may be obtained by a creditor upon an application, supported by an affidavit of the creditor or his agent or solicitor, setting forth

(a) the judgment and the date of the recovery thereof;

(b) the amount due on the judgment; and

(c) the name and residence of the debtor or the county in which he is to be found. R.S., c. 76, s. 8.

Order for attendance

9 (1) The examiner shall, upon such application, make an order requiring the attendance of the debtor before him at the time and place therein named.

Form of order

(2) The order may be in Form A in the Schedule or to the like effect.

Service

(3) It shall be served on the debtor at least twenty-four hours before the time fixed therein for his attendance and may be served by any literate person. R.S., c. 76, s. 9.

Adjournment where failure to attend

10 If the debtor does not personally attend at the time and place so fixed for his attendance, the examiner may, upon affidavit or oral testimony of due service upon the debtor of the order for examination, adjourn the examination to another time. R.S., c. 76, s. 10.

Arrest where failure to attend

11 If good cause is not shown for his failure to attend at the time and place fixed for his attendance, or at any time fixed by an adjournment, the examiner may, upon proof by affidavit or oral testimony of due service upon the debtor of the order for examination, forthwith issue a warrant for the arrest and imprisonment of the debtor. R.S., c. 76, s. 11.

Warrant for arrest

12 (1) A creditor may, without obtaining any order for the examination of the debtor in the first instance, obtain a warrant for the arrest and imprisonment of the debtor, upon an application to an examiner, supported by an affidavit of himself or his solicitor or agent setting forth

(a) the judgment and date of the recovery thereof;

(b) the amount due on the judgment; and

(c) the deponents belief that the debtor is about to leave the Province and without stating the ground for such belief.

Application to set aside warrant

(2) If, upon the application of the debtor, it is proved, either by affidavit or oral testimony, or upon examination, that he was not at the time of the issuing of the warrant about to leave the Province, the examiner shall set aside the warrant obtained in the first instance and discharge the debtor from custody or the sureties from liability. R.S., c. 76, s. 12.

Under hand of examiner

13 Every warrant for the arrest and imprisonment of a debtor shall be under the hand of the examiner. R.S., c. 76, s. 13.

Content of warrant

14 The warrant shall direct the officer to arrest the debtor and bring him before the examiner issuing the warrant, to attend the examination and to be further dealt with according to law. R.S., c. 76, s. 14.

Return of warrant

15 (1) It shall not be necessary to make the warrant returnable at any particular time, but the same shall remain in force until it is executed.

Execution on holiday

(2) The warrant shall not be executed on a holiday or on a day preceding a holiday. R.S., c. 76, s. 15.

Powers of examiner

16 The examiner, on such person being brought before him, may

(a) verbally order the officer to keep the debtor in his custody and to bring him before him at the time appointed for examination;

(b) release the debtor upon his entering into a bond with sufficient sureties, to the satisfaction of the examiner, to attend at the time appointed for the examination; or

(c) commit the debtor to jail or lock-up until the time appointed for the examination, then to be brought before him by the officer. R.S., c. 76, s. 16.

Form of warrant

17 (1) The warrant may be in one of the Forms B, C or D in the Schedule, or to the like effect.

Form of bond

(2) The bond may be in Form E in the Schedule, or to the like effect.

Form of commitment

(3) The commitment may be in Form F in the Schedule, or to the like effect. R.S., c. 76, s. 17.

Examination proceeds upon attendance

18 Upon the attendance before the examiner, whether in obedience to the order or at any subsequent time fixed by the examiner and whether brought before the examiner in custody or in pursuance of the bond given by the sureties, the examiner may proceed with the examination. R.S., c. 76, s. 18.

Scope of examination

19 (1) The debtor, if the creditor requires it, may be examined fully touching the matters of the inquiry.

Examination of witnesses

(2) Either the creditor or debtor may call, examine and cross-examine witnesses and may enforce the attendance of such witnesses, and the production of documents by subpoenas issued out of the court in which judgment was recovered, and shall be issued by the examiner.

Subpoena of witnesses

(3) Where a collecting agency or a solicitor or agent thereof requires a subpoena for the attendance of a witness at any examination of the debtor, the person making the application for the subpoena shall satisfy the examiner by proof on oath that the witness is likely to give material evidence touching the matter of the examination, and the subpoena shall not be issued unless the examiner requires the same. R.S., c. 76, s. 19.

Answers under oath

20 The debtor, or any witness, shall be sworn to make true answers to all such questions as shall be put to him touching the matters of the inquiry. R.S., c. 76, s. 20.

Refusal to be sworn

21 If a debtor or witness refuses or is unwilling, from alleged conscientious motives, to be sworn, he shall, if the examiner is satisfied of the sincerity of his objections, be permitted, instead of being sworn, to make the affirmation or declaration provided by the Evidence Act, and in such case refusal to make such affirmation or declaration, or refusal to answer any such questions, may be dealt with in the same manner as refusal to be sworn. R.S., c. 76, s. 21.

Failure of witness to attend

22 (1) Upon failure of a witness to attend at the examination, the examiner, upon proof that the witness has been duly served with a subpoena and has been paid or tendered his fees for attendance and travel, may forthwith issue a warrant under his hand to bring such person, at the time and place to be therein mentioned, before the examiner, to be examined as a witness.

Form of warrant

(2) The warrant may be in Form G in the Schedule, or to the like effect.

Execution of warrant

(3) The warrant may be executed anywhere in the Province by an officer. R.S., c. 76, s. 22.

Detention of witness

23 If a person subpoenaed as a witness is brought before an examiner on a warrant issued in consequence of refusal to obey the subpoena, the person

(a) may, by the verbal order of the examiner on the warrant, be detained before the examiner, or in a jail or lock-up, or in the custody of the person having him in charge, in order to secure his presence as a witness on the date fixed for the examination; or

(b) may, in the discretion of the examiner, be released on his giving a bond, with or without sureties, conditioned for his attendance to give evidence. R.S., c. 76, s. 23.

Refusal to co-operate

24 (1) Where, upon an examination, the debtor or any witness who is produced for the purpose of giving evidence on the examination

(a) refuses to be sworn or to be examined upon affirmation or declaration;

(b) having been sworn, or permitted to affirm or declare, refuses to answer such questions as are put to him touching the matters of the inquiry; or

(c) refuses to produce any documents which he has been required by subpoena to produce,

without in any such case offering any just excuse for the refusal, the examiner may thereupon adjourn the examination and may in the meantime by a warrant in the Form H in the Schedule, or to the like effect, commit the person so refusing to a jail or lock-up, there to be detained until the time to which the examination is adjourned and to be brought before the examiner.

Further refusal

(2) If the person, upon being brought up at the adjournment of the examination, again refuses to do what is so required of him, the examiner may make a further adjournment of the examination and another commitment of the person, and so again from time to time until the person consents to do what is so required of him. R.S., c. 76, s. 24.

Adjournment of examination

25 (1) The examiner may, from time to time, adjourn any such examination, but no adjournment shall be for more than one week.

Detention of debtor

(2) The examiner may commit the debtor to jail until the time fixed for the adjournment, unless the debtor enters into a bond, with sufficient sureties to the satisfaction of the examiner, to attend at the time and place to which the examination is adjourned. R.S., c. 76, s. 25.

Form of warrant

26 (1) The warrant for commitment may be in Form F in the Schedule, or to the like effect.

Form of bond

(2) The bond may be in Form E in the Schedule, or to the like effect. R.S., c. 76, s. 26.

Appointment of special examiner

27 (1) The Governor in Council may appoint one or more persons to be a functionary or functionaries for the City of Halifax or for a county or municipality for the purposes in this Act specified, such functionary to be called "a special examiner under the Collection Act".

Restriction

(2) A person so appointed shall not act as an examiner.

City of Halifax

(3) In every case where the application has been made to an examiner under the Collection Act for the City of Halifax, a special examiner for the City of Halifax and no other functionary shall be the special examiner.

Sections 19 to 24 and subsection 25(2)

(4) Sections 19 to 24 and subsection (2) of Section 25 shall mutatis mutandis apply to the examination of debtors before a special examiner.

Adjournment

(5) The special examiner may from time to time adjourn any such examination, but no adjournment shall be for a longer period than one month. R.S., c. 76, s. 27.

Examination by special examiner

28 (1) At the conclusion of the evidence, or after an adjournment for deliberation, the examiner may verbally order a peace officer to take the debtor before a special examiner, who may thereupon proceed with the examination of the debtor in respect of any of the following matters:

(a) the contracting of the debt, or the incurring of the liability which forms the subject of the judgment;

(b) the disposition by the debtor of his property;

(c) the debtors present circumstances; and

(d) his present or prospective means of paying the debt.

Imprisonment of debtor

(2) At the conclusion of the examination, or after adjournment for deliberation, the special examiner may, by warrant, commit the debtor to the county jail for any term not exceeding twelve months, if it appears to the special examiner that

(a) the debt, which forms the subject of the judgment, was fraudulently contracted;

(b) the credit was obtained under false pretences;

(c) the debtor contracted the debt without having at the time any reasonable expectation of being able to pay the same;

(d) any other fraudulent circumstances have occurred in connection with the contracting of the debt;

(e) the debtor has made a fraudulent disposition of his property; or

(f) in cases of tort, the tort was wilful and malicious.

Form of warrant

(3) The warrant of commitment may be in Form I in the Schedule, or to the like effect, and may contain the ground of commitment as indicated in Form I.

Content of warrant

(4) It shall be stated in the warrant that the commitment shall be terminable upon the debtor paying the amount due on the judgment, and the fees, if any, indicated on the warrant. R.S., c. 76, s. 28.

Assignment of property

29 (1) The examiner, after the examination of the debtor, may require that the debtor shall execute an assignment of all his real and personal property, credits and effects (except such property as is exempt from levy on execution) to the creditor in trust for the payment due on the judgment, and, if the debtor refuses to execute such an assignment, the examiner may order the debtor to appear before a special examiner for further examination at such time and place as the examiner may appoint.

Continued refusal to execute assignment

(2) After such further examination, the special examiner may verbally require that the debtor shall execute the assignment referred to in subsection (1) and, in the event of the failure of the debtor to execute such an assignment, the special examiner may take such refusal into consideration in fixing the term of imprisonment provided in Section 28 to be inserted in the warrant of commitment.

Imprisonment for refusal to execute

(3) If he has determined not to commit the debtor under Section 28, he may nevertheless verbally require that the debtor execute such assignment and, in the event of the refusal of the debtor, may forthwith, by warrant, commit the debtor to jail for any term not exceeding twelve months, but such commitment shall be terminable upon the debtor executing such assignment or paying the amount due on the judgment and the fees indicated on the warrant.

Form of warrant

(4) The warrant of commitment may be in Form J in the Schedule or to the like effect. R.S., c. 76, s. 29.

Order for payment of judgment

30 (1) Where upon the examination of any judgment debtor, other than the one arrested because he was about to leave the Province, it appears to the examiner that he is possessed of means or income sufficient therefor, he may make an order requiring him to pay the amount due on the judgment by instalments.

Content of order

(2) The order shall state the amount of the instalments and the time when and the places at which the same shall be paid.

Additional payments

(3) The examiner may also, in his discretion, direct that the debtor shall pay the fees payable by the creditor to any witness and to the examiner or officers under this Act, with the first or any other instalment, and it shall be sufficient to indorse or indicate the amount of such fees under the order and without other taxation, but no such direction shall be made by the examiner for any subsequent order or orders for the same debt unless the creditor shall satisfy the examiner by proof on oath that the debtor wilfully refuses to pay the instalments directed to be made by the first order.

Debtor unable to make payments

(4) If the debtor is unable to make any of the payments directed to be made by such order, he may, upon an affidavit by himself or his agent or solicitor setting forth such order and that he is not possessed of means or income sufficient to make the payments directed to be made by such order, obtain ex parte from an examiner an order for re-examination, and upon such re-examination the examiner may set aside or vary the order so made.

Concurrent orders

(5) No order shall be made against any debtor to run concurrently with any order previously made unless in the opinion of the examiner a further order is fully justified by the circumstances of the debtor.

Costs

(6) If it appears to the examiner that no further order should be made the costs of the examination shall not be taxed against the debtor.

Form of order

(7) The order for payment of such instalments may be in Form K or to the like effect. R.S., c. 76, s. 30.

Examination for failure to make payments

31 (1) If the debtor fails to make any of the payments directed to be made by an order made under Section 30 or under this Section, the creditor may, upon an affidavit by himself or his agent or solicitor setting forth the order and the non-compliance therewith, obtain ex parte from a special examiner an order requiring the attendance of the debtor before the special examiner at the time and place therein named.

Enforcement of attendance

(2) Sections 9 to 17 shall mutatis mutandis apply to the enforcing by a special examiner of the attendance of a debtor.

Examination as to means

(3) Upon attendance before the special examiner the debtor may be examined as to his means and income.

Amendment of payment order

(4) Where, upon such examination, it appears to the special examiner that the debtor is not possessed of means or income sufficient to make the payments directed to be made by the order aforesaid but is possessed of means or income sufficient to make some payment, he may make an order requiring the debtor to pay the amount due on the judgment by such instalments as appear to him to be just, but if it appears to the special examiner that the debtor is able to make larger payments than in the order aforesaid he may increase the amount of the instalments.

Concurrent order

(5) No order shall be made by the special examiner against any debtor to run concurrently with any order previously made unless in the opinion of the special examiner a further order is fully justified by the circumstances of the debtor.

Costs

(6) If it appears to the special examiner that no further order should be made, the costs of the examination shall not be taxed against the debtor.

Arrest for non-payment

(7) Where, upon such examination, it appears to the special examiner that the debtor has without reasonable excuse refused or neglected to pay the instalment mentioned in such order and is possessed of means or income sufficient to pay the same, he may make an order that an execution directed to the proper officer to arrest the debtor shall issue, except that such execution shall not be executed on a holiday or a day preceding a holiday.

Application to have instalments reduced

(8) If the debtor is unable to make any of the payments directed to be made by such order, he may, upon an affidavit of himself or his agent or solicitor setting forth such order and that he is not possessed of means or income sufficient to make the payments directed to be made by such order, apply to the special examiner or to a special examiner to have the instalments payable by such order reduced, and, upon proof that the means or income of the debtor have changed since the making of the original order or the latest subsequent order varying it, the special examiner or a special examiner may vary the original or subsequent order so made.

Privileges upon arrest

(9) Any person arrested under such execution shall have the following privileges:

(a) he may apply for relief under the Indigent Debtors Act;

(b) if he has remained in jail for two days, the jailer shall notify the county court clerk or other official having the custody of the documents and records under which he has been imprisoned, and such official shall forthwith forward all such documents and records to the county court judge for the district of which he is county court clerk or official, and the county court judge shall examine the documents and records ex parte, and upon such examination may in his discretion, if the imprisonment is imposing undue hardship on the debtor or his family, make an order directed to the sheriff that the debtor be released, and the order for release shall be forthwith acted upon by the jailer or sheriff; and

(c) the judgment creditor or plaintiff in the cause in which such execution has been issued shall be liable to pay to the jailer the sum of one dollar per day for the maintenance of the debtor, which sum may be recovered from the plaintiff as a civil debt, and, if at any time such payments for fourteen days are unpaid the jailer shall forthwith release the debtor, and any such sums paid by the creditor to the jailer shall be paid over by the jailer to the municipal clerk.

Form of orders for payment

(10) The order for payment of such instalments, the order for execution and the execution may be in the Forms K, varied to suit the circumstances, L and M, respectively, or to the like effect.

Issue of execution

(11) The prothonotary, clerk, registrar, or other official of the court, or justice of the peace, who respectively may issue an execution upon the judgment to take the property of the debtor, shall, in compliance with such order, issue the execution to take the body.

Expiration of order

(12) No execution issued pursuant to an order under subseciton [subsection] (7) shall be executed after thirty days from the date on which the order was made or after a payment on account of his indebtedness has been made by the debtor and accepted by the creditor, his solicitor or agent subsequent to the making of the order, provided, however, that after the expiration of the thirty days or after the acceptance of such payment, if the debtor continues to be in default in making any of the payments referred to in subsection (1), the creditor may proceed in the same manner as if no examination had been held by a special examiner and no such order or execution had been issued. R.S., c. 76, s. 31.

Condition of arrest

32 (1) Notwithstanding any provision of this Act, no debtor shall be arrested or imprisoned under an order unless the debtor is summoned to appear before a judge of the county court and the judge by order authorizes the arrest and imprisonment.

Proceeding in debtors absence

(2) If a debtor fails to appear before a judge in response to a summons, the judge may proceed in his absence.

Duties of judge

(3) A judge before whom a debtor is summoned to appear shall inquire into the circumstances and shall not make an order authorizing his arrest and imprisonment if imprisonment would impose undue hardship on the debtor or his family. R.S., c. 76, s. 32.

Appeal

33 (1) An appeal shall lie from all orders, decisions or adjudications of an examiner to

(a) a judge of the Supreme Court; or

(b) a judge of the county court for the district in which the debtor was examined.

Sittings or in chambers

(2) The appeal may be heard either at sittings or in chambers. R.S., c. 76, s. 33.

Notice of appeal

34 (1) Notice of appeal, stating the grounds thereof, and the time and place at which the appeal will be brought on shall be given by the appellant to the respondent at least forty-eight hours before the hearing.

Service

(2) It may be served by being left with the solicitor of the respondent or the respondent personally, or at his last place of abode, within ten days from the date of the order, decision or adjudication appealed from or within any additional time allowed upon application to any such judge. R.S., c. 76, s. 34.

Debtor may remain in custody

35 (1) The debtor, if the appeal is from a decision or adjudication adjudging imprisonment, shall either remain in custody until the time of the hearing of the appeal or shall enter into a bond in a sum to be fixed by the examiner, but not exceeding the amount due on the judgment, with two sufficient sureties conditioned personally to appear before the judge in the hearing of the appeal and to surrender himself to prison in case of an adjudication of imprisonment.

Affidavit by surety

(2) Every surety shall, if required by the examiner, make an affidavit of his sufficiency as such surety.

Discharge from custody

(3) Upon the filing of the bond, the debtor shall be discharged from custody, pending the result of the appeal.

Discharge of sureties

(4) The sureties to the bond shall be discharged by surrendering the debtor to prison. R.S., c. 76, s. 35.

Appeal to Supreme Court

36 (1) The appeal, if made to a judge of the Supreme Court, shall be brought on

(a) before the judge who first holds a sittings in the county in which the appeal is made, unless otherwise ordered by the judge; or

(b) if a judge of the Supreme Court resides in the county, within thirty days from the date of the order, decision or adjudication of the examiner.

Appeal to county court

(2) The appeal, if made to a judge of the county court, shall be brought on

(a) at the first sittings in the county in which the appeal is made, unless otherwise ordered by the judge; or

(b) if a judge of the county court resides in the county, within thirty days from the date of the order, decision or adjudication of the examiner.

Failure to prosecute within time limits

(3) Where the appellant fails to prosecute his appeal within the time prescribed by this Section, the appeal shall stand dismissed and the decision or adjudication of the examiner shall be confirmed without further order. R.S., c. 76, s. 36.

Order to compel debtors attendance

37 (1) Where the appeal is from an order of the examiner discharging the debtor, the judge before whom the appeal is to be heard may, upon application, make an order requiring the attendance of the debtor before him at a time and place named therein.

Failure to attend

(2) If the debtor fails to attend in obedience to the order, the judge may issue an order under his hand for the arrest and imprisonment of the debtor and may enforce the attendance of the debtor in the manner prescribed for enforcing attendance before an examiner. R.S., c. 76, s. 37.

Evidence on appeal

38 If the appeal is from an adjudication of the examiner upon an examination had before him, the evidence at such examination may be read on the appeal, but the judge, in his discretion, may have the debtor or any other witness called before him for examination, whether he was called before the examiner or not. R.S., c. 76, s. 38.

Duties of judge on appeal

39 (1) The judge, to whom the appeal is made, shall thereupon hear and determine the matter of the appeal and may confirm or reverse the decision or order of the examiner or may make such order, adjudication or commitment as to him seems just and which the examiner might have made under this Act, and shall, for the enforcement thereof, have like powers and may use the like process and procedure.

Powers of judge

(2) The judge may, in his discretion, order the unsuccessful party upon the appeal to pay to the other the costs of the appeal, to be taxed according to the scale of fees of the court of which the judge is a member. R.S., c. 76, s. 39.

Decision on appeal final

40 The judgment of the judge upon the appeal under this Act shall be final. R.S., c. 76, s. 40.

Sections 33 to 40 apply to appeal

41 Sections 33 to 40 inclusive shall mutatis mutandis apply to an appeal from all orders, decisions or adjudications of a special examiner. R.S., c. 76, s. 41.

Fees payable to examiner

42 (1) The fees in the Costs and Fees Act shall be payable to the examiner and the officer, respectively, and in the discretion of the examiner may be verbally ordered to be paid by the debtor to the creditor and, if not paid, may be endorsed or indicated on the order or warrant made against the debtor, without any taxation, and may be enforced by means of the order or warrant, but, when the judgment debt is less than fifty dollars, the fees payable to the examiner shall not exceed the sum of three dollars and fifty cents.

Fees of special examiner

(2) The fees payable to a special examiner shall be double the fees in the Costs and Fees Act prescribed for an examiner but, where the judgment debt is less than fifty dollars, the fees payable to the special examiner shall not exceed the sum of five dollars. R.S., c. 76, s. 42.

Validity of forms in Schedule

43 The several forms in the Schedule, or forms to the like effect, shall be deemed good, valid and sufficient in law. R.S., c. 76, s. 43.

Order for commitment not to be held invalid

44 (1) No order or warrant of commitment made by an examiner, a special examiner or the judge on appeal shall, on any application, be held invalid or brought in question in any court or before any judge for any irregularity, informality or insufficiency therein, if the court or judge before which or whom the question is raised is, upon perusal of the evidence taken upon the examination, satisfied that there was ground for making an order or warrant of commitment under this Act.

Judge may order commitment

(2) Such court or judge shall, upon such application, hear such evidence and may make such order or warrant of commitment thereupon as the examiner might have made, and such order or warrant of commitment may be enforced in the same manner as if it has been made by such examiner. R.S., c. 76, s. 44.

Where commitment refused

45 After an examination has taken place under this Act before an examiner, a special examiner or a judge on appeal and an order or warrant of commitment has been refused, no subsequent order or proceedings to enforce an examination shall be applied for, in respect to the same judgment, unless it is proved by affidavit before the examiner that there is an amount due upon the judgment and that

(a) the judgment debtor is about to leave the Province;

(b) some subsequent fraudulent circumstance has occurred in respect to the amount due on the judgment, or the disposition of the debtors property since the last examination; or

(c) the debtor is then in receipt of such income as will enable him to pay the amount due on the judgment by instalments. R.S., c. 76, s. 45.

Filing of evidence

46 (1) After the conclusion of the examination of any debtor under this Act, the examiner or special examiner shall forthwith file the evidence taken before him on the examination with the prothonotary for the county in which the evidence is taken if the judgment is in the Supreme Court, if the judgment is in the county court with the clerk of the court for the county and in other cases with the papers in the cause and, in cases where an order for commitment to jail is made by the examiner or special examiner, the examiner or special examiner shall forthwith file the evidence taken before him on the application for the warrant for commitment in the same manner as the evidence taken in the examination of the debtor.

No fee

(2) The prothonotary, clerk or person with whom the evidence is filed shall not be entitled to any fee for filing the evidence.

Where examination not concluded

(3) Where the examination is not concluded, the portion of the evidence which has been taken before the examiner shall be filed in like manner. R.S., c. 76, s. 46.

Act applies to all examiners

47 All examiners and special examiners appointed before the commencement of this Act are hereby appointed and confirmed as such under this Act, and the provisions of this Act relative to examiners and special examiners shall apply to such examiners and special examiners whether appointed before or after the commencement of this Act. R.S., c. 76, s. 47.

To (name of debtor) of (address).

Whereas it has been made to appear to me that (creditors name) is entitled to receive from you $ . . . . . . . . . in respect to a certain judgment (or order), of the . . . . . . . . court, of which he has been unable to obtain satisfaction;

Therefore take notice that you are hereby required to attend an examination before me at . . . . . . . . on the . . . . . . . . day of . . . . . . . . at the hour of . . . . . . . . oclock in the . . . . . . . . noon, then to be dealt with as in and by the Collection Act is provided;

And further take notice, that in the event of your failing to attend at such time and place, a warrant may issue for your arrest.

(date and address)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

To the Sheriff of the County of . . . . . . . . . .

Whereas, by an order issued under my hand, the above-named . . . . . . . . . judgment debtor, was required to attend an examination before me, for examination under the provisions of the Collection Act, at my office at . . . . . . . . . in the County of . . . . . . . . . on the . . . . . . . . . day of . . . . . . . . ., 19. . . . ., at the hour of . . . . . . . . . oclock in the . . . . . . . . . noon;

And whereas the said . . . . . . . . . . has not attended the examination at the time and place fixed for his attendance and no cause to my satisfaction has been shown for the non-appearance of . . . . . . . . .

And whereas it has been shown upon affidavit to my satisfaction that . . . . . . . . . has been duly served with the order;

These are therefore to command you forthwith to arrest . . . . . . . . . and to bring him before me to attend such examination and to be further dealt with under the Collection Act.

Given under my hand and seal, this . . . . . . . . . . . day of . . . . . . . . ., 19. . . . , at . . . . . . . . . in the County of . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

To the Sheriff of the County of . . . . . . . . . .

Whereas, by an order issued under my hand and dated the . . . . . . . . . . . day of . . . . . . . . . . . ,19. . . . ., the above named . . . . . . . . . . judgment debtor, attended an examination before me under the provisions of the Collection Act, at my office at . . . . . . . . . . . . . in the County of . . . . . . . . . . . . . on the . . . . . . . . . . day of . . . . . . . . . ., 19. . . . ., at the hour of . . . . . . . . . oclock in the . . . . . . . . . . noon.

And whereas the said examination not being concluded was then adjourned by me for further hearing, to be held before me at such place on . . . . . . . . . . the . . . . . . . . . day of . . . . . . . . . . . ,19. . . . .

And whereas the said judgment debtor has failed to attend the adjourned examination and no cause, to my satisfaction, has been shown for the non-appearance of the judgment debtor;

These are therefore to command you forthwith to arrest . . . . . . . . . . and to bring him before me to attend such examination and to be further dealt with under the Collection Act.

Given under my hand and seal this . . . . . . . . . . . .day of . . . . . . . . . ., 19. . . . ., at . . . . . . . . . . in the County of . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

To the Sheriff of . . . . . . . . . .

Whereas it has been made to appear to me that (creditors name) is entitled to receive from (debtors name) $. . . . . . . . . . in respect to a certain judgment of the court and is desirous of obtaining an examination under the Collection Act, and also that the judgment debtor is about to leave this Province;

These are therefore to command you forthwith to arrest the said judgment debtor and to bring him before me to attend an examination and to be further dealt with under the Collection Act.

Given under my hand and seal this . . . . . . . . . . day of . . . . . . . . ., 19 . . . . ., at . . . . . . . . . ., in the County of . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

Know all men by these presents that we (names, places and residences of the judgment debtor and the sureties) are held and firmly bound unto (name, place and residence of the judgment creditor) in the sum of $. . . . . . . . . . to be paid to the said judgment creditor, his executors, administrators or assigns, for which payment to be well and truly made we bind ourselves, and each of us by himself, our and every of our heirs, executors and administrators firmly by these presents, sealed with our seals, this . . . . . . . . . . day of . . . . . . . . . , 19. . . . .

Whereas the judgment debtor has this day appeared to attend an examination under the Collection Act, and it is in the interest of justice that such examination should take place on (or be adjourned to) the . . . . . . . . . . day of . . . . . . . . . ., 19. . . . ., at . . . . . . . . . . oclock in the . . . . . . . . . .noon.

The conditions of the foregoing obligation is such, that if the said judgment debtor appears at such time to attend such examination, and to be further dealt with under the Collection Act, the obligation shall be void, otherwise to be in full force and virtue.

Signed, sealed and

delivered in the presence of . . . . . . . . . . . . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . .

To the Sheriff of the County of . . . . . . . . . .

Whereas the above named C.D. (or A.B., as the case may be) has this day appeared before me (or been brought before me) to attend an examination under the Collection Act;

And whereas it is in the interest of justice that such an examination should take place on (or be adjourned to) the . . . . . . . . . day of . . . . . . . . . ., 19. . . . ., at . . . . . . . . . oclock in the . . . . . . . . .noon;

And whereas the above named (C.D. or A.B.) has failed to enter into a bond with sufficient sureties to my satisfaction to attend at such time and place;

These are therefore to command you, forthwith to convey the said (C.D. or A.B.) to the jail (or lock-up) at . . . . . . . . . .

And I hereby command you, the keeper of the said jail (or lock-up) to receive (A.B. or C.D.) into your custody in the jail (or lock-up) and there safely keep him until such time, when I hereby command you to have him at such time before me to attend such examination, and to be further dealt with under the Collection Act, unless you are otherwise ordered in the meantime, or unless the judgment debtor in the meantime pays $. . . . . . . . . . the amount due on the judgment and the fees indicated in the margin.

Given under my hand and seal at . . . . . . . . . aforesaid, the . . . . . . . . day of . . . . . . . . ., 19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

Solicitor of the . . . . . . . . . .

To the Sheriff of the County of . . . . . . . . . .

Whereas it has been made to appear to me that . . . . . . . . . . is a necessary and material witness on behalf of the . . . . . . . . . .

And whereas it has been made to appear that the said . . . . . . . . . has been duly served with a subpoena and paid (or tendered) . . . . . . . . . fees for travel and attendance as a witness for the . . . . . . . . . upon the examination of the above-named . . . . . . . . . judgment debtor, being held before me under the provisions of the Collection Act, and refuses or neglects to attend to give evidence upon such examination;

These are therefore to command you to forthwith arrest the said . . . . . . . . . . and him safely keep in the jail (or lock-up) at . . . . . . . . . in the County of . . . . . . . . . so that you may have him at . . . . . . . . . in the County of . . . . . . . . . on the . . . . . . . . . day of . . . . . . . . ., 19. . . . ., before me, at the hour of . . . . . . . . . oclock in the . . . . . . . . . .noon, for the purpose of giving evidence at the examination of the said . . . . . . . . . judgment debtor. Whereof fail not and have there this warrant with your doings thereon.

Given under my hand and seal this . . . . . . . . . . day of . . . . . . . . ., 19. . . . ., at . . . . . . . . . in the County of . . . . . . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

To the Sheriff of the County of . . . . . . . . . .

Whereas, upon the examination of . . . . . . . . . now being held before me at . . . . . . . . . . in the County of . . . . . . . . . . this . . . . . . . . . . day of . . . . . . . . ., 19. . . . ., under the provisions of the Collection Act, . . . . . . . . who is now before me (for examination or for the purpose of giving evidence upon such examination) being now required by me to make oath (or affirmation) in that behalf, refuses so to do, (or being now here duly sworn as a witness on behalf of the . . . . . . . . . at this examination refuses to answer certain questions concerning the premises which are now here put to him, and more particularly the following questions: {here insert the exact words of the question}) without offering any just excuse for such refusal;

These are therefore to command you to take E.F., and him safely convey to the jail (or lock-up) at . . . . . . . . . .

And I do hereby command you, the keeper of the jail (or lock-up), to receive E.F. into your custody in the jail (or lock-up) and him there safely keep for the period of . . . . . . . . . . days for his contempt, unless in the meantime he consents to be examined and to answer concerning the matters, and for your so doing this shall be your sufficient warrant.

Given under my hand and seal at . . . . . . . . . . . . this . . . . . . . . . . day of . . . . . . . . . ., 19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

To the Sheriff of . . . . . . . . . .

Whereas (name of debtor) has been examined before me under the provisions of the Collection Act, touching a certain judgment (or order) of the (specify court) court, whereby (creditors name) is entitled to receive from (debtor) the sum of $. . . . . . . . . . of which he has not been able to obtain satisfaction;

And whereas, it has been made to appear to my satisfaction (here state result of examination in terms of the Act, as for example, that the debt, which forms the subject of the judgment, was fraudulently contracted by the debtor or that the debtor obtained credit for the debt which forms the subject of the judgment by means of false pretences or that the debtor contracted the debt which forms the subject of the judgment without having at the time any reasonable expectation of being able to pay the same (or, if any other fraudulent circumstances in connection with the contracting of the debt which forms the subject of the judgment have been found, then state the same concisely) or that the debtor has made fraudulent disposition of his property or that the liability arose in consequence of the debtors wilful and malicious tort).

Now this is to command you that you do forthwith arrest the said (debtor) and him safely convey to the jail at . . . . . . . . .

And I do hereby command you, the keeper of the jail, to receive the debtor into your custody in the jail, and him there safely keep for the term of . . . . . . . . . . or until he pays you for the creditor the sum of $. . . . . . . . . . with the fees indicated in the margin, on which payment being made you shall forthwith discharge him.

(date and address)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Special Examiner under the Collection Act

To the Sheriff of . . . . . . . . . .

Whereas (name of debtor) has been examined before me under the Collection Act, touching a certain judgment of the court, and has been required to execute an assignment of all his real or personal property (except such as is exempt from levy on execution) to the creditor in trust for the payment of the amount due on the judgment, which the debtor has refused to do.

These are therefore to command you forthwith to arrest the debtor and him safely convey to the jail at . . . . . . . . .

And I hereby command you, the keeper of the jail, to receive the debtor into your custody in the jail, and him there safely keep for the term of . . . . . . . . . or until he executes such assignment or pays the amount due on the judgment, and the fees indicated in the margin, and for your so doing this shall be your sufficient warrant.

Given under my hand and seal at . . . . . . . . . . in the County of . . . . . . . . . this . . . . . . . . . day of . . . . . . . . . ., 19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Special Examiner under the Collection Act

To (debtors name and address)

Whereas you have this day been examined before me under the provisions of the Collection Act, touching a certain judgment (or order) of the (specify court), whereby (creditors name) is entitled to receive payment of $. . . . . . . .

And whereas it has been made to appear to my satisfaction that you are possessed of means or income sufficient to enable you to pay the amount due on such judgment, and all costs, by instalments;

Now this is to command you that you do pay to (creditor) $. . . . . . (monthly or weekly, as the case may be) such payments to be made (place of payment) beginning on the . . . . . . . . . and continuing on each succeeding . . . . . . . . . . until the full amount due on such judgment, and the fees indicated in the margin payable with the (first) instalment are paid.

And take notice that in the event of your failing to make any one of such payments you will be liable to have execution issued against you.

(date and place of signature)

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Commissioner of the Supreme Court

residing in the County of . . . . . . . . . . . .

Upon hearing the judgment creditor (or creditors) herein, and it appearing to my satisfaction that the judgment debtor has failed to make payment of an instalment under the terms of an order for paying instalments under the Collection Act and that an execution to take the body should issue against the judgment debtor (or debtors) herein, in accordance with the provisions of the Collection Act.

I do order that execution do issue on the judgment herein, as authorized by the Collection Act.

Dated at . . . . . . . . . . this . . . . . . . . . day of . . . . . . . . ., 19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . (L.S.)

A Special Examiner under the Collection Act

Elizabeth, by the Grace of God:

To the Sheriff of the County of . . . . . . . . . . or to any other of our . . . . . . . . sheriffs, greeting:

Whereas . . . . . . . . . by the consideration of our . . . . . . . . court at . . . . . . . . . . on the . . . . . . . . . day of . . . . . . . . . , 19. . . . ., . . . . . . . . . recovered judgment against . . . . . . . . . of . . . . . . . . . in the County of . . . . . . . . . the sum of . . . . . . . . . dollars and . . . . . . . . . cents, debt or damage, and the sum of . . . . . . . . . dollars and . . . . . . . . . cents costs of suit;

And whereas an order has been made for the issue of an execution upon such judgment to take the body, under the Collection Act;

We command you therefore to take . . . . . . . . . and commit him to our jail in your bailiwick, and detain in your custody, within our jail, until he pays the full amount due on the judgment, with the fees indicated in the margin, or that he be discharged by . . . . . . . . . the creditor, or otherwise, according to law.

Whereof fail not, and make due return of this order unto our said . . . . . . . . . court at . . . . . . . . .

Issued at . . . . . . . . . this . . . . . . . . . day of . . . . . . . . ., 19. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Solicitor of . . . . . . . . . . . . . . . . . . . .

R.S., c. 76, Sch.