FOREIGN ATTACHMENT ORDINANCE
Title
FOREIGN ATTACHMENT ORDINANCE
Description
ORDINANCE No. 2 of 1855.
Foreign Attachment.
No. 2 of 1855.
An Ordinance to provide for and regulate process in actions at law
against persons absent from the Colony.
[19th January, 1855.]
WHEREAS by the laws at present in force there are no means by which actions
at law can be successfully prosecuted against persons absent from the Colony
because there is no process by foreign attachment or otherwise for compelling either
defence or appearance on behalf of any such defendant --
X94
Form ofattacl,-
n,unt and how
served.
Proviso as to
proof where
canao of action
a.;crned.
Public. notice to
be given.
Property and
debts bound from
the tine <>f
attachment
nerved.
ORDINANCE No. 2 of 185.
Foreign Attachment.
.On.aaYretnrn 1. Be it therefore enacted and ordained by His Excellency
the Governor of
of non eaEinventus '- --
~n~o~ affidavit Hongkong, with the advice of the Legislative Council
thereof, that in every action at,~.
a~ proceed
law which shall hereafter be commenced in the Supreme Court of Hongkong
wherein
absent the writ of summons or of capiaa shall as to any defendant named
therein be returria.
'Attachment. non est inventus if upon or after such return an affidavit
shall be filed on behalf of the -
plaintiff (in addition to a full affidavit of the cause of action that
such cause of action .
arose within this Island or its dependencies and that to the best of the
deponent's: -
belief such defendant does not reside within this Island or its
dependencies a;nd is~fo -
the best of the deponent's belief possessed of or entitled to or
otherwise beneficially;
interested in any lands movies securities for money chattels or other
property in they
custody or under the control of any person or persons in this Island or
its dependencies
(to be named in such affidavit) or that any such person or persons is or
are indebted'
to such defendant the plaintiff may proceed against such defendant by
process of
foreign attachment in the manner hereinafter directed.
2. And be it enacted and ordained that at any time after the filing of
such atBdavit
as aforesaid a writ of foreign attachment shall be issued at the
plaintiff's instance as of
course and every such writ shall be in the form or to the effect of the
form contained
in the schedule to this Ordinance marked A and be returnable into the
said Court not =
less than fourteen days nor more than sixty days next after the date
thereof and shall -
be served upon the several garnishees or persons therein named in whose
hands it,.is
intended thereby to attach any such lauds movies chattels or debts by
delivering a copy,
-
theroof to each such garnishee personally or by leaving the same at his
or her then -or
then last usual place of abode-Provided always that final judgment shall
in no ease be:
signed in any such action until an entry shall have been made on the
record of the
issue of such writ of attachment with a suggestion of the fact that the
cause or causes of
action so arose as aforesaid and that in case it shall at any tune appear
that the cause of
action did not arise within this Island or its dependencies the
attachment shall be -
forthwith dissolved with costs to be paid by the plaintiff to such
parties and in such
manner as the Court shall direct.
3. And be it enacted and ordained that in addition to such service the
plaintiff,
shall also cause a notice of the issue of such writ signed by him or his
attorney to be
published not less than twice in the Government Gazette and also not less
than twice in
one newspaper published within this Colony and every such notice shall be
in the form
or to the effect of the form contained in the schedule to this Ordinance
marked I3 and
the last of such publications thereof shall be one week at the least
before the day on -
which the writ of attachment shall be so made returnable.
4. And be it enacted and ordained that from the tune of the service of
such writ:
upon any such garnishee or person as aforesaid all and singular the lands
movies duel.:
chattels bills bonds and other property of whatsoever nature in the
custody -or underv
the control of such garnishee then belonging to the defendant against
whom the same-
writ issued or to or in which such defendant shall then be legally or
equitably entitlecd-
or otherwise beneficially interested and whether solely or jointly with
any other person: -
ORDINANCE No.. 2 of 1855.
Foreign Attachment.
or persons and all debts of every kind then due by any such garnishee to
such
defendant although the same or part thereof may be payable only at a
future day shall
to the extent of such defendant's right title and interest therein
respectively be attached
in the hands of such garnishee and (subject to any bowl fide prior claims
or liens
thereon) be liable to the satisfaction of the particular demand or cause
of action of
which he shall by the said writ have had notice-and any such garnishee or
person who
shall without the leave of the said Court at any, time after such service
and before the
said attachment shall be dissolved as hereinafter mentioned sell or
otherwise knowingly
dispose of or part with any such property or pay over any such debt or
any part thereof
excepting only to or to the use of the plaintiff in such writ shall upon
the application
in a summary way of such plaintiff to the said Court and on proof of the
facts to the
satisfaction of the said Court pay such damages to the said plaintiff as
the said Court
shall in that behalf think fit to order.
5. And be it enacted and ordained that upon the return of every such writ
of
attachment as aforesaid or as soon after as conveniently may be and upon
such other
day or days of adjournment if any as shall in that behalf be directed the
said Court
shall proceed to enquire and determine whether in fact the plaintiff's
cause of action
arose within this Island or its dependencies and if so then what lands
monies chattels
and other property as aforesaid sufficient to satisfy the plaintiff's
cause of action
together with his costs of suit then are or were at the time of the
service of the same
writ in the custody or under the control of any such garnishee or person
as aforesaid
belonging to the defendant or to or in which he was at that time entitled
or interested,
as aforesaid and what debts were then due to such defendant from any such
garnishee
or person and the particulars thereof and whether the slime lands monies
and other
property and debts or any part or parts thereof are or can be made
available for the
purpose of making such satisfaction as aforesaid and to what amount
respectively and
for the purposes of such enquiry and determination it shall be lawful for
the said
Court in a summary way to examine or permit the said plaintiff to examine
viva voce
upon oath every such garnishee or person together with such witnesses (if
any) as the
laid Court may think proper to be so examined and for that purpose to
make such
orders and issue such summonses to witnesses as may in that behalf be
deemed expe-
dient-and any such garnishee or person as aforesaid or witness who shall
refuse or
neglect to attend according to the exigency of any such writ of
attachment or to obey
any such order or summons or shall refuse to be so examined shall be
liable to be sum-
marily proceeded against as in cases of contempt of Court and to be
punished accor-
dingly.
6. And be it enacted and ordained that if any such garnishee or person in
whose
hands any such lands goods or property as aforesaid shall have been so
attached shall be
desirous of disposing of the same or any part thereof or of receiving the
amount of any
such bill or bond or other chose in action or any part thereof pending
such attachment
and shall apply for that purpose to the said Court it shall be lawful for
the said Court
(due notice having been given to the plaintiff of such intended
application) to author-
l:nnniry as to
property is
f:arntslae's
hands.
Disposal of
goods, &c. by
leave of Court.
ORDINANCE No. 2 oiF 1855.
Foreign Attachment.
ise such garnishee or person to sell or dispose of any such property or
receive any such
amount and to hold the proceeds of such sale or disposal or the amount so
received
subject to such attachment as aforesaid or otherwise for the satisfaction
of the plaintiff
as to such Court shall seem fit.
Afterattachment 7. And be it enacted and ordained that at any time after
the return day of any
returned
mayprooeediiniff
such writ of attachment it shall be lawful for the plaintiff to cause an
appearance to be
the action.
entered for the defendant against whom the same shall have so issued and
to proceed
thereon as if such defendant resided within this Colony and had appeared
to the action
in person-provided that such bond as is in that behalf hereinafter
mentioned shall
have been duly entered into before final judgment be given therein.
Court to $, And be it enacted and ordained that so soon as upon aany such
examination or
determine what y
~ ri~nnowuojeet enquiry as aforesaid it shall be ascertained by the Court
what lands monies or other
to the attnich
went. such property and debts as aforesaid can be made available for the
purpose of making
such satisfaction to the plaintiff as aforesaid the said Court shall
forthwith order the
same or such part or parts thereof respectively as it shall tbink proper
in that behalf
to be thenceforward holden for that purpose and to continue subject to
such attachment
accordingly or to be sold or otherwise disposed of if such Court shall
think fit and the
proceeds or (in case of debts then payable) the amount of such debts to
be paid into
the hands of some officer of the Court subject to such attachment as the
said Court
may order and with respect to all and singular the lands monies and other
property
debts and other choses in action to which no such order as last aforesaid
shall be in-
tended to apply it shall be lawful for the said Court at any time to
direct that the
said attachment shall be dissolved.
Pntolainatiff todenter r 9. And be it enacted and ordained that within one
calendar month next after any
Account) &e. such writ of attachment shall have issued as aforesaid the
plaintiff at whose suit the
same shall have been so issued or if absent some person on his behalf
shall before the
said Court enter into a bond with two sufficient sureties to be approved
of by such
Court acknowledging himself and themselves to be indebted to the
defendant against
whom such attachment shall have so issued in such sum as the said Court
shall think
fit to order the condition of which said bond shall be in the form or to
the effect of the
form contained in the schedule to this Ordinance marked C-and in case of
any breach
or alleged breach of such condition the defendant shall beat liberty to
sue the parties to,
such bond thereon at any time and if such bond be not so entered into as
aforesaid the
attachment shall be ipso facto dissolved.
Ater;udg-ment 10. And be it enacted and ordained that at any time after
such bond shall havq.
''~'iet'fle'factag, been so entered into and after final judgment in
favour of the plaintiff shall have been
obtained it shall be lawful for him to cause a writ or writs of fieri
facias upon such
judgment to be from time to time issued as in any ordinary case for the
amount of the
debt or damages and costs thereby recovered and to cause to be taken in
execution under
any such writ as against any defendant whose property shall have been so
attached as
aforesaid all or any part of the lands goods me nies and other property
so attached and.
ORDINANCE No. 2 of 1855:
Foreign Attachment.
297
which shall then continue subject to such attachment as aforesaid in
whose hands what llla>. ilh
taken under it
soever the same property shall then be and whatever may be the nature of
such,pro-
perty whether ordinarily liable to be taken in execution or not and
although the same
-or part thereof may be of the nature of a chose in action only and to
receive any, such
property in satisfaction or part satisfaction of such debt or damages and
costs to an
amount or value to be fixed by the sheriff or to cause all such property
(except as next
mentioned) to be sold under such writ or writs asin ordinary
cases-Provided that with
respect to any such debt or other chose in action as aforesaid no sale or
other disposi-
Lion thereof shall take place except by order of the Court-and upon the
application of
the plaintiff at any tine in a summary manner it shall be lawful for the
said Court to
authorise an action for the amount of any such debt to be brought in the
name of the
creditor being such defendant as aforesaid or to cause the debtor to be
summoned to
attend such Court to show cause why he should not forthwith pay the same
amount to
such plaintiff 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 of the like nature.
11. Provided always and be it enacted and ordained that if pending any
such writ
-of foreign attachment as aforesaid or at any time before final judgment
obtained in the
.action in which such writ issued the defendant against whom the same
attachment
shall have issued or any person on his behalf shall before the said Court
enter into a
bond with two sufficient sureties to be approved of by such Court
acknowledging him-
-self and themselves to be indebted to the plaintiff in such sum as the
said Court shall
think fit to order conditioned to pay the said plaintiff the amount of
such debt or
damages and costs as he shall at any time thereafter recover in such
action it shall be
lawful for such defendant or person on his behalf upon entering an
appearance in such
action (or if such appearance shall previously have been entered by the
plaintiff then
upon filing a plea or pleas therein) to defend such action and upon
giving notice
thereof to the said plaintiff to apply to the said Court by motion as of
course that the
said attachment may be dissolved and the same shall be dissolved
accordingly and the
action'sball thereupon proceed to trial and judgment in the ordinary
manner.
12. And be it enacted and ordained that if after any such final judgment
obtained
:as aforesaid an affidavit shall be made by the defendant against whom
such process of
foreign attachment shall have issued as aforesaid that such defendant bad
at the time of
the obtaining of the said judgment and still bath a substantial ground of
defence (either
wholly or in part) to the plaintiff's action on the merits and such
affidavit (sworn as next
hereinafter mentioned) shall at any time before the expiration of two
years next after such
,judgment be filed in the said Court then upon motion thereupon for that
purpose made
to the said Court on behalf of the said defendant and after due notice
thereof given to
the-said plaintiff and security being entered into for the payment to him
of all costs
by him at any time thereby sustained it shall be lawful for the said
Court to cause
the merits so alleged as aforesaid to be inquired into and determined in
such manner
Provision for diR-
Kolring foreign
urGleiuneut.
Provision
euablin6 absent
11ePendant to
oeme in and de-
fend w.)toll two
yews.
ORDINA\ CE No. 2 of 185.
Foreign Attachment.
and form either by a feigned issue between the parties or otherwise and
at such time-
and under such terms and conditions for the purpose of securing the
substantial ends.
of justice as to the said Court shall seem meet and the said Court after
such enquiry,
and determination had shall thereupon give such judgment or from time to
time make,
such order or orders in the premises between the parties as the justice
of the case shall
appear to require and every such judgment and order may at any time (if
the party
succeeding shall think fit) be suggested upon or added to the record of
the original
action in which such final judgment shall have been so obtained as
aforesaid-And
every such affidavit if made within the Colony shall be sworn before some
officer of the-
Court or person authorised or to be authorised to take affidavits to be
used in the said
Court or if made elsewhere shall be sworn before a Judge or master of
some Court o£'
Law or Equity or the Chief Magistrate of some city or corporate town
certified under the
official seal of such Magistrate.
Property in noa- 13. And be it enacted and ordained that the property of
any such absent defend-
eesaion of unp co.
defendant. ant as aforesaid may under the provisions of this Ordinance be
equally attached and
taken in the custody or bower of any co-defendant as of any such
garnishee or person
as aforesaid not being a party to the action and that no process of
foreign attachment
against any such absent defendant nor any lien intended to be thereby
created upon
the lands monies securities debts and chattels or oilier property of such
defendant
thereby attached shall in any case be defeated by reason of any such
co-defendant or-
other garnishee as aforesaid being or claiming to be jointly interested
with such defend-
ant therein either as partner or otherwise.
f'rovisinn t,mao 14. Provided always and be it enacted and ordained that
in all cases wherein two
of OefpnituutA
hued an couart- or more defendants shall be sued as copartners and as to
either of such defendants.
there shall be a return of non est inventus but as to any other of such
defendants there
shall be a return of personal service or of crrpi corpus then if at any
time after any such
return an affidavit wall be filed that to the best of the deponent's
knowledge and belief
the defendant nerved or arrested did in fact when the cause of action
accrued carry on
business in this Island or its dependencies as a copartner jointly with
the defendant as,
to whom there shall have been such return of non est inventus and that
such last men-.
tinned defendant is absent from the Colony it shall be lawful for the
plaintiff at his
option to proceed against every such defond;.wt (in case no appearance be
entered for
him) in the manner next hereinafter mentioned.
s>ren copartners 15. And be it enacted and ordained that thereupon or as
soon after as convenient--
absent item too
<.0o11Y to t11kya ly may be the plaintiff shall cause a notice signed by
himself or his
7fOticp. . attorney to be pub-.
lisped in the Government Gazette and in not less than one other newspaper
published
within this Colony in the form or to the effect of the form in the
schedule to this Or--
dinauce marked D-And if on the day named in such notice (such day not
being less'
than ten days nest after the day of the publication of the same in the
Government Ga-
zette) no appearance be entered for such defendant or defendants the
plaintiff may cause
such appearance to be entered and may proceed as if he or they resided
within this.
Colony and had appeared to the action in person.
ORDINANCE No. 2 of 1855.
Foreign Attachment.
16. And whereas in some cases business is or may be carried on in this
Island by
persons in copartnership or by one individual or more assuming the style
of a copart-
nership or acting as agent or agents for a copartnership and in some of
those cases the
members of such copartnership or some of them are not only absent from
the Colony
but their names are or may be unknown-Be it therefore enacted and
ordained that
(in order to prevent any failure of justice in such cases) every such
copartnership and
the several members thereof or the persons or person having carried on
business
under the style of any such copartnership may be sued in any action at
law in the
name or names of any one or more of the members of such copartnership on
behalf of
.all the members composing the same or in the name or names of any such
agent or
.agents for and on behalf of such copartnership so as that in all cases
wherein but for
this Ordinance it would have been necessary to mention the names of all
the members
.composing any such copartnership it sball be sufficient to mention the
name or names
.of such one or more member or members only or of such agent or agents on
behalf of
such copartnership.
1'7. And be it enacted and ordained that every judgment obtained or order
made
in any such action as last aforesaid shall have the sarne effect and
operation upon tae
persons and property both real and personal of such copartnership and of
the several
members thereof whether such property be joint or. separate as if every
member of such
-copartnership had been actually and in fact a defendant in the action
and every such
judgment or order may be enforced against all such property as in
ordinary cases of
the like nature.
18. Provided always and be it enacted and ordained that in every summons
and
other writ issued and declaration or other pleading filed on behalf of
the plaintiff in any
action brought under the provisions of the two preceding sections the
style or firm of
the copartnership shall be specified and it shall distinctly appear that
the defendant or
defendants sued is or are so sued for and on behalf of such
copartnership-And provided
also that no agent sued on behalf of any such copartnership shall by
reason only of
his being so sued be incompetent as a witness in the action on behalf
either of the
plaintiff or of the copartnership or be liable either in person or
property to any
judgment obtained in such action.
18. And (for supplying a more full and effectual remedy in this behalf in
all cases
in which there are joint contractors one or more of whom shall be absent
from the
Colony)--Be it enacted and ordained that no plea in abatement shall
hereafter be re-
ceived on behalf of any defendant in any action in respect of the
non-joinder therein
of any person alleged to leave been a joint contractor with such
defendant unless it be
expressly alleged in such plea that the person not joined is then
resident at some place
within this Island or its dependencies and where in particular.
20. And be it enacted and ordained that nothing in this Ordinance
contained shall ordinance to ex-
tend only to case
-extend to any action of trespass or other action in tort (troves or
detiuue excepted) but of contract.
-to actions on or arising out of contract only.
299
colv,rt,iorsl,i,ts -
kill of wHOSe
ntemhers are nut
known.
Sne17 copartner-
ships may be
sued in the mute
()t 7111)' one tt1e717-
ber or agent.
.lndR7uent
against such
defendant. to
operate nytinet
toe coyartuer_
Ship,
Proviso.
Agent net to 17e
incompetent as n
witness.
Pleas in abate-
ment.
ORDINANCE No. 2 of 1855.
Foreign Attachment.
21. And be it enacted and ordained that absence from the Colony shall for
the
purposes of this Ordinance be taken to be absence for the time being
whether the party
shall ever have been within this Island or not.
The c°'''r '''°
'nuMce tnlos trait 22, And be it enacted and ordained that in all cases in
which no provision or no-
award costs. sufficient provision in that behalf is by this Ordinance made
it shall be lawful for the said.
Supreme Court from time to tithe for the purpose of facilitating or more
fully or effec-
tually carrying any or either of the objects of this Ordinance into
execution upon any
application in a summary way made for that purpose by or on behalf of any
person
interested in any matter by this Ordinance intended to be provided for or
without any
such application to make and prescribe all such rules and orders either
general or ap-
plicable to any particular case only touching any of the matters intended
to have been
hereby provided for and touching also the manner of proceeding before or
applying -
to the said Court and also the execution of writs and orders and tire
allowance
and taxation of costs under this Ordinance as to the Court shall seem
expedient and such
rules and orders from time to time to revoke or alter as to the Court
shall appear
to be requisite and all rules and orders so made and prescribed shall be
of the same force
and effect as if they had been inserted in this present Ordinance-And the
said Court
shall in all cases whatsoevor of applications made to or proceedings had
or taken before
or by authority of the said Court or otherwise under this Ordinance have
full power
to award or refuse costs the same to be paid by and to such party or
parties as the
Court shall in each case think fit to order.
SCHEDULE A.
VICTORIA by the Grace of God of the United Kingdom of Great. Britain and
Ireland Queen.
Defender of the Faith-To the Sheriff of Hongkong and its dependencies
greeting-Whereas A. B. bath
lately in the Supreme Court of Ilongkong commenced an action at law
against C. D [or against C. D.
and );, h,] and the writ of suuunons (or cayias' in the said action has
been returned [or has as to the
said C. D. been'returned] non ext invrntxx and the said A. B. hatli
caused to be flied in the said Court
the affidavit required by the Ordinance of this Island intituled °` An
Ordinance to provide for and regulate
process in actions at law against persons absent from the Colony,' Now we
command yon that you.
attach in the hand of G. H. [or G. Ii. Ii,. M and I. B. respectively]
all and singular the lands
itcreditaments monks securities for money chattels and other property
which the said C. D. is possessed
of or entitled to or otherwise beneficially interested in and which are
or is in the custody or under the
controul of the said G. H. [or G. H. IL. VI, and I. Fs, respectively] at
the time of your serving the said
Cx. H. [him or them J with this writ and also all and every the sums and
sum of money in which the
the said G. H. is [or the said G. .1T. R. 11T. and I. K. or either of.
them are or is] indebted to the said
C. D. at the time of such service-And we further cotrimand you that you
summon the said G. $. [o~
the said G. H. R. DT. and T. Ii. unit each'ot them] that he (ot~ they] be
and appear before the said court
on the day of then and there to be examined touching the premises and
further
to do and receive what the said Court shall then and there consider in
this behalf and have you then
there this writ.
Witness the Honourable
Justice of the said Court
day of in the
Our Chief
aforesaid this
year of our reign.
(Official seal.)
ORDINANCE No. 2 of 1855.
Fmeign Attachment.
[Notice to be written under or annexed to theprecedirtp.]
TAKE NOTICE that from the time of your being served with this writ all
and singular the lands
and other hereditaments monies and chattels bills bonds and,other
property of whatsoever nature in
your custody or under your controul belonging to'the above-named C. D or
to or in which lie is legally
or equitably entitled or otherwise beneficially interested and whether
solely or jointly with any other
person or persons and all debts of every kind clue by yon to the said C.
D. although the same or part
thereof may be payable only at a future day are to the extent of the
right title and interest of the said
C. D. therein attached in your hands and [subject to any bn>t& fine prior
claims or liens thereon] are
liable to the satisfaction of the above-named A. B. in the
above-mentioned action--And if you, shall
before this attachment is dissolved sell or otherwise knowingly dispose
of or part with any such property
or pay over any such debt or any part thereof without the leave of the
Supreme Court you will be liable
to pay such damages to the said A. B. as the said Court shall in that
behalf think fit to order.
A. B,
1'0 Mr. G. A. [or G H. R. 1T. and 1. Ii. severally.]
In the Srdrrcrnc G'oxrt of ~
Hongkong.
[or L. M. Plaintiff's Attorn-ey.]
SCHEDULE B.
BETWEEN
A. B. Plain.ti,ff
and
(:. D. Dc,/brtdant [or C. D:
E. If. Defendants.]
WIiLREAS an action has been commenced in this Court at the suit of the
above-named A. 13,
against the above-named C. D. [or C. D. and E. F.] to recover [state
sTcortT.y the cause of action in
substance and the amorcnt stvurn to if,fur a snnt certain] and it being
alleged that the slid C. D, does
not reside within this Island or its dependencies a wr;t of foreign
attachment has been issued returnable
on the day of wherein G. I-L. of ~ is garnishee [or G. II. of
13, M. Of and I. Ts, of are garnishees]-Notice is hereby given thereof and
that if at any time before final judgment in this action the said C. D.
or any person on bra behalf
will give the security and notice and file the appearance or plea
required by the Ordinance of this
Island intituled [insert title] the said attachment may be dissolved.
Dated this day of 1$6
A. B.
[or L. 11Z. Plaint$ff'a Attorney.]
SCHEDULE C.
KNOW ALL MEN by these presents that we A, B. of
yu. N. 0. of 4-c, and I'. Q. of yc. are and each of us is jointly and
severally bound unto-
C. D, late of yc, in the penal sum of $ to be paid to the said C. D
or,his certain attorney executors administrators or assigns-For which
payment to be
cede we jointly and severally bind ourselves and each and every of us and
our respective
heirs executors and administrators firmly by these presents. Sealed with
our seals.
Dated this day of
WHEREAS an action at law liath lately been commenced in the Supreme Court
of Hongkong at-
the.suit of the above-bounden A. B. against the above-named C. D. [or C.
D. and another] and a writ
ry:. v^ bf foreign attachment hath on the application of the said A. B.
been issued therein and whereas the.
Foreign Attachment.
said A. B. being about to proceed in the said action it is necessary for
him to give the security required
by the Ordinance of this Island intituled do Ordinance tc provide fur
and regulate process in actions
at law against peg-song absent from the Colony and the above-bounden N.
0. and P. Q. have agreed to
become his sureties-Now the condition of this obligation is that if the
said A. B. his executors or
administrators shall pay or cause to be paid to the said C. D. his
executors or administrators all and
every the sums and sum of money which he shall receive or recover in or
by reason of the said action
in case the judgment obtained therein stall be hereafter reversed or
vacated and also all and every the
sums and sum of money damages costs and charges which by the said Court
shall at any time hereafter
be adjudged or ordered to be paid by the said A. B. his executors or
administrators to the said C. D.
his executors or administrators for or by reason or on account of or in
any manner relating to the said
action and the said attachment or either of them or any proceedings
hitherto taken or hereafter to be
taken in or under the same respectively or any judgment that may be
obtained or any execution or
eaocutions that may be issued in the same action-Then this obligation
shall be void otherwise it is to
remain in full force.
in ac Suprcntc Court ofd
' Hongkong.
SCHEDULE D.
A. B. Plaintif
BETWEEN and
C. D. & h. F. Defendants.
nta.
WHEREAS an action has been commenced in this Court at the suit of the
above-named A. 13.
against the above-named C. D. and B. lr', as copartners carrying on
business under the style or firm of
and no appearance has been entered for the said C. D. in the said action
and he is
alleged to be absent from the Colony-Notice is hereby given that unless
the said C. D. or some person
on his behalf shall enter an appearance for the said C. D. to the said
action on or before the
day of the said A. I3. will cause such appearance to be entered for trim in
pursuance of the Ordinance of this Island for regulating yroQCas in
actions against persons absent
frorn the Colony and mill proceed in the said action as if the said C. D.
bad resided in $ongkong and
had appeared in person.
Dated this day of 186
A. B.
Lor L. T. Plaintes Attorney.]
[Repealed by Ordinance No. 4 of 1887.]
NoTC.-1'or fZegulre Grrzrralea under this Ordinance see lisle 5th larch,
18:ir, gazetted the 7th
of the same month and Rule 14th November, 18:i9, gazetted the 26th of the
same mouth.
293
Title.
Preamble. On any return of non est inventus and on affidavit filed, &c. plaintiff may proceed against an absent defendent by foreign attachment.
Form of attachment and how served.
Provis as to proof where cuase of action accured.
Public notice to be given.
Property and debts bound from the time of attachment served.
Enquiry as to property in garnishee's hands.
Disposal of goods, &c. by leave fo Court.
After attachment returned plaintiff may proceed in the action.
Court to determine what property is to continue subject to the attachment.
Plaintiff to enter into a bond to account, &c.
After judgment plaintiff may issue a fieri facias.
What may be taken under it.
Provision for dissolving foreign attachment.
Provision enabling absent defendant to come in and defend within two years.
Property in possession of any co-defendant.
Provision in case of defendants sued as copartners.
Such copartners absent from the Colony to have notice.
Copartnerships all of whose members are not known.
Such copartnerships may be sued in the name of any one member or agent.
Judgment against such defendant to operate against the copartnership.
Proviso.
Agent not to be incompetent as a witness.
Pleas in abatement.
Ordinance to extend only to cases of contract.
The term 'absence.'
The Court may make rules and award costs.
302
Foreign Attachment.
No. 2 of 1855.
An Ordinance to provide for and regulate process in actions at law
against persons absent from the Colony.
[19th January, 1855.]
WHEREAS by the laws at present in force there are no means by which actions
at law can be successfully prosecuted against persons absent from the Colony
because there is no process by foreign attachment or otherwise for compelling either
defence or appearance on behalf of any such defendant --
X94
Form ofattacl,-
n,unt and how
served.
Proviso as to
proof where
canao of action
a.;crned.
Public. notice to
be given.
Property and
debts bound from
the tine <>f
attachment
nerved.
ORDINANCE No. 2 of 185.
Foreign Attachment.
.On.aaYretnrn 1. Be it therefore enacted and ordained by His Excellency
the Governor of
of non eaEinventus '- --
~n~o~ affidavit Hongkong, with the advice of the Legislative Council
thereof, that in every action at,~.
a~ proceed
law which shall hereafter be commenced in the Supreme Court of Hongkong
wherein
absent the writ of summons or of capiaa shall as to any defendant named
therein be returria.
'Attachment. non est inventus if upon or after such return an affidavit
shall be filed on behalf of the -
plaintiff (in addition to a full affidavit of the cause of action that
such cause of action .
arose within this Island or its dependencies and that to the best of the
deponent's: -
belief such defendant does not reside within this Island or its
dependencies a;nd is~fo -
the best of the deponent's belief possessed of or entitled to or
otherwise beneficially;
interested in any lands movies securities for money chattels or other
property in they
custody or under the control of any person or persons in this Island or
its dependencies
(to be named in such affidavit) or that any such person or persons is or
are indebted'
to such defendant the plaintiff may proceed against such defendant by
process of
foreign attachment in the manner hereinafter directed.
2. And be it enacted and ordained that at any time after the filing of
such atBdavit
as aforesaid a writ of foreign attachment shall be issued at the
plaintiff's instance as of
course and every such writ shall be in the form or to the effect of the
form contained
in the schedule to this Ordinance marked A and be returnable into the
said Court not =
less than fourteen days nor more than sixty days next after the date
thereof and shall -
be served upon the several garnishees or persons therein named in whose
hands it,.is
intended thereby to attach any such lauds movies chattels or debts by
delivering a copy,
-
theroof to each such garnishee personally or by leaving the same at his
or her then -or
then last usual place of abode-Provided always that final judgment shall
in no ease be:
signed in any such action until an entry shall have been made on the
record of the
issue of such writ of attachment with a suggestion of the fact that the
cause or causes of
action so arose as aforesaid and that in case it shall at any tune appear
that the cause of
action did not arise within this Island or its dependencies the
attachment shall be -
forthwith dissolved with costs to be paid by the plaintiff to such
parties and in such
manner as the Court shall direct.
3. And be it enacted and ordained that in addition to such service the
plaintiff,
shall also cause a notice of the issue of such writ signed by him or his
attorney to be
published not less than twice in the Government Gazette and also not less
than twice in
one newspaper published within this Colony and every such notice shall be
in the form
or to the effect of the form contained in the schedule to this Ordinance
marked I3 and
the last of such publications thereof shall be one week at the least
before the day on -
which the writ of attachment shall be so made returnable.
4. And be it enacted and ordained that from the tune of the service of
such writ:
upon any such garnishee or person as aforesaid all and singular the lands
movies duel.:
chattels bills bonds and other property of whatsoever nature in the
custody -or underv
the control of such garnishee then belonging to the defendant against
whom the same-
writ issued or to or in which such defendant shall then be legally or
equitably entitlecd-
or otherwise beneficially interested and whether solely or jointly with
any other person: -
ORDINANCE No.. 2 of 1855.
Foreign Attachment.
or persons and all debts of every kind then due by any such garnishee to
such
defendant although the same or part thereof may be payable only at a
future day shall
to the extent of such defendant's right title and interest therein
respectively be attached
in the hands of such garnishee and (subject to any bowl fide prior claims
or liens
thereon) be liable to the satisfaction of the particular demand or cause
of action of
which he shall by the said writ have had notice-and any such garnishee or
person who
shall without the leave of the said Court at any, time after such service
and before the
said attachment shall be dissolved as hereinafter mentioned sell or
otherwise knowingly
dispose of or part with any such property or pay over any such debt or
any part thereof
excepting only to or to the use of the plaintiff in such writ shall upon
the application
in a summary way of such plaintiff to the said Court and on proof of the
facts to the
satisfaction of the said Court pay such damages to the said plaintiff as
the said Court
shall in that behalf think fit to order.
5. And be it enacted and ordained that upon the return of every such writ
of
attachment as aforesaid or as soon after as conveniently may be and upon
such other
day or days of adjournment if any as shall in that behalf be directed the
said Court
shall proceed to enquire and determine whether in fact the plaintiff's
cause of action
arose within this Island or its dependencies and if so then what lands
monies chattels
and other property as aforesaid sufficient to satisfy the plaintiff's
cause of action
together with his costs of suit then are or were at the time of the
service of the same
writ in the custody or under the control of any such garnishee or person
as aforesaid
belonging to the defendant or to or in which he was at that time entitled
or interested,
as aforesaid and what debts were then due to such defendant from any such
garnishee
or person and the particulars thereof and whether the slime lands monies
and other
property and debts or any part or parts thereof are or can be made
available for the
purpose of making such satisfaction as aforesaid and to what amount
respectively and
for the purposes of such enquiry and determination it shall be lawful for
the said
Court in a summary way to examine or permit the said plaintiff to examine
viva voce
upon oath every such garnishee or person together with such witnesses (if
any) as the
laid Court may think proper to be so examined and for that purpose to
make such
orders and issue such summonses to witnesses as may in that behalf be
deemed expe-
dient-and any such garnishee or person as aforesaid or witness who shall
refuse or
neglect to attend according to the exigency of any such writ of
attachment or to obey
any such order or summons or shall refuse to be so examined shall be
liable to be sum-
marily proceeded against as in cases of contempt of Court and to be
punished accor-
dingly.
6. And be it enacted and ordained that if any such garnishee or person in
whose
hands any such lands goods or property as aforesaid shall have been so
attached shall be
desirous of disposing of the same or any part thereof or of receiving the
amount of any
such bill or bond or other chose in action or any part thereof pending
such attachment
and shall apply for that purpose to the said Court it shall be lawful for
the said Court
(due notice having been given to the plaintiff of such intended
application) to author-
l:nnniry as to
property is
f:arntslae's
hands.
Disposal of
goods, &c. by
leave of Court.
ORDINANCE No. 2 oiF 1855.
Foreign Attachment.
ise such garnishee or person to sell or dispose of any such property or
receive any such
amount and to hold the proceeds of such sale or disposal or the amount so
received
subject to such attachment as aforesaid or otherwise for the satisfaction
of the plaintiff
as to such Court shall seem fit.
Afterattachment 7. And be it enacted and ordained that at any time after
the return day of any
returned
mayprooeediiniff
such writ of attachment it shall be lawful for the plaintiff to cause an
appearance to be
the action.
entered for the defendant against whom the same shall have so issued and
to proceed
thereon as if such defendant resided within this Colony and had appeared
to the action
in person-provided that such bond as is in that behalf hereinafter
mentioned shall
have been duly entered into before final judgment be given therein.
Court to $, And be it enacted and ordained that so soon as upon aany such
examination or
determine what y
~ ri~nnowuojeet enquiry as aforesaid it shall be ascertained by the Court
what lands monies or other
to the attnich
went. such property and debts as aforesaid can be made available for the
purpose of making
such satisfaction to the plaintiff as aforesaid the said Court shall
forthwith order the
same or such part or parts thereof respectively as it shall tbink proper
in that behalf
to be thenceforward holden for that purpose and to continue subject to
such attachment
accordingly or to be sold or otherwise disposed of if such Court shall
think fit and the
proceeds or (in case of debts then payable) the amount of such debts to
be paid into
the hands of some officer of the Court subject to such attachment as the
said Court
may order and with respect to all and singular the lands monies and other
property
debts and other choses in action to which no such order as last aforesaid
shall be in-
tended to apply it shall be lawful for the said Court at any time to
direct that the
said attachment shall be dissolved.
Pntolainatiff todenter r 9. And be it enacted and ordained that within one
calendar month next after any
Account) &e. such writ of attachment shall have issued as aforesaid the
plaintiff at whose suit the
same shall have been so issued or if absent some person on his behalf
shall before the
said Court enter into a bond with two sufficient sureties to be approved
of by such
Court acknowledging himself and themselves to be indebted to the
defendant against
whom such attachment shall have so issued in such sum as the said Court
shall think
fit to order the condition of which said bond shall be in the form or to
the effect of the
form contained in the schedule to this Ordinance marked C-and in case of
any breach
or alleged breach of such condition the defendant shall beat liberty to
sue the parties to,
such bond thereon at any time and if such bond be not so entered into as
aforesaid the
attachment shall be ipso facto dissolved.
Ater;udg-ment 10. And be it enacted and ordained that at any time after
such bond shall havq.
''~'iet'fle'factag, been so entered into and after final judgment in
favour of the plaintiff shall have been
obtained it shall be lawful for him to cause a writ or writs of fieri
facias upon such
judgment to be from time to time issued as in any ordinary case for the
amount of the
debt or damages and costs thereby recovered and to cause to be taken in
execution under
any such writ as against any defendant whose property shall have been so
attached as
aforesaid all or any part of the lands goods me nies and other property
so attached and.
ORDINANCE No. 2 of 1855:
Foreign Attachment.
297
which shall then continue subject to such attachment as aforesaid in
whose hands what llla>. ilh
taken under it
soever the same property shall then be and whatever may be the nature of
such,pro-
perty whether ordinarily liable to be taken in execution or not and
although the same
-or part thereof may be of the nature of a chose in action only and to
receive any, such
property in satisfaction or part satisfaction of such debt or damages and
costs to an
amount or value to be fixed by the sheriff or to cause all such property
(except as next
mentioned) to be sold under such writ or writs asin ordinary
cases-Provided that with
respect to any such debt or other chose in action as aforesaid no sale or
other disposi-
Lion thereof shall take place except by order of the Court-and upon the
application of
the plaintiff at any tine in a summary manner it shall be lawful for the
said Court to
authorise an action for the amount of any such debt to be brought in the
name of the
creditor being such defendant as aforesaid or to cause the debtor to be
summoned to
attend such Court to show cause why he should not forthwith pay the same
amount to
such plaintiff 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 of the like nature.
11. Provided always and be it enacted and ordained that if pending any
such writ
-of foreign attachment as aforesaid or at any time before final judgment
obtained in the
.action in which such writ issued the defendant against whom the same
attachment
shall have issued or any person on his behalf shall before the said Court
enter into a
bond with two sufficient sureties to be approved of by such Court
acknowledging him-
-self and themselves to be indebted to the plaintiff in such sum as the
said Court shall
think fit to order conditioned to pay the said plaintiff the amount of
such debt or
damages and costs as he shall at any time thereafter recover in such
action it shall be
lawful for such defendant or person on his behalf upon entering an
appearance in such
action (or if such appearance shall previously have been entered by the
plaintiff then
upon filing a plea or pleas therein) to defend such action and upon
giving notice
thereof to the said plaintiff to apply to the said Court by motion as of
course that the
said attachment may be dissolved and the same shall be dissolved
accordingly and the
action'sball thereupon proceed to trial and judgment in the ordinary
manner.
12. And be it enacted and ordained that if after any such final judgment
obtained
:as aforesaid an affidavit shall be made by the defendant against whom
such process of
foreign attachment shall have issued as aforesaid that such defendant bad
at the time of
the obtaining of the said judgment and still bath a substantial ground of
defence (either
wholly or in part) to the plaintiff's action on the merits and such
affidavit (sworn as next
hereinafter mentioned) shall at any time before the expiration of two
years next after such
,judgment be filed in the said Court then upon motion thereupon for that
purpose made
to the said Court on behalf of the said defendant and after due notice
thereof given to
the-said plaintiff and security being entered into for the payment to him
of all costs
by him at any time thereby sustained it shall be lawful for the said
Court to cause
the merits so alleged as aforesaid to be inquired into and determined in
such manner
Provision for diR-
Kolring foreign
urGleiuneut.
Provision
euablin6 absent
11ePendant to
oeme in and de-
fend w.)toll two
yews.
ORDINA\ CE No. 2 of 185.
Foreign Attachment.
and form either by a feigned issue between the parties or otherwise and
at such time-
and under such terms and conditions for the purpose of securing the
substantial ends.
of justice as to the said Court shall seem meet and the said Court after
such enquiry,
and determination had shall thereupon give such judgment or from time to
time make,
such order or orders in the premises between the parties as the justice
of the case shall
appear to require and every such judgment and order may at any time (if
the party
succeeding shall think fit) be suggested upon or added to the record of
the original
action in which such final judgment shall have been so obtained as
aforesaid-And
every such affidavit if made within the Colony shall be sworn before some
officer of the-
Court or person authorised or to be authorised to take affidavits to be
used in the said
Court or if made elsewhere shall be sworn before a Judge or master of
some Court o£'
Law or Equity or the Chief Magistrate of some city or corporate town
certified under the
official seal of such Magistrate.
Property in noa- 13. And be it enacted and ordained that the property of
any such absent defend-
eesaion of unp co.
defendant. ant as aforesaid may under the provisions of this Ordinance be
equally attached and
taken in the custody or bower of any co-defendant as of any such
garnishee or person
as aforesaid not being a party to the action and that no process of
foreign attachment
against any such absent defendant nor any lien intended to be thereby
created upon
the lands monies securities debts and chattels or oilier property of such
defendant
thereby attached shall in any case be defeated by reason of any such
co-defendant or-
other garnishee as aforesaid being or claiming to be jointly interested
with such defend-
ant therein either as partner or otherwise.
f'rovisinn t,mao 14. Provided always and be it enacted and ordained that
in all cases wherein two
of OefpnituutA
hued an couart- or more defendants shall be sued as copartners and as to
either of such defendants.
there shall be a return of non est inventus but as to any other of such
defendants there
shall be a return of personal service or of crrpi corpus then if at any
time after any such
return an affidavit wall be filed that to the best of the deponent's
knowledge and belief
the defendant nerved or arrested did in fact when the cause of action
accrued carry on
business in this Island or its dependencies as a copartner jointly with
the defendant as,
to whom there shall have been such return of non est inventus and that
such last men-.
tinned defendant is absent from the Colony it shall be lawful for the
plaintiff at his
option to proceed against every such defond;.wt (in case no appearance be
entered for
him) in the manner next hereinafter mentioned.
s>ren copartners 15. And be it enacted and ordained that thereupon or as
soon after as convenient--
absent item too
<.0o11Y to t11kya ly may be the plaintiff shall cause a notice signed by
himself or his
7fOticp. . attorney to be pub-.
lisped in the Government Gazette and in not less than one other newspaper
published
within this Colony in the form or to the effect of the form in the
schedule to this Or--
dinauce marked D-And if on the day named in such notice (such day not
being less'
than ten days nest after the day of the publication of the same in the
Government Ga-
zette) no appearance be entered for such defendant or defendants the
plaintiff may cause
such appearance to be entered and may proceed as if he or they resided
within this.
Colony and had appeared to the action in person.
ORDINANCE No. 2 of 1855.
Foreign Attachment.
16. And whereas in some cases business is or may be carried on in this
Island by
persons in copartnership or by one individual or more assuming the style
of a copart-
nership or acting as agent or agents for a copartnership and in some of
those cases the
members of such copartnership or some of them are not only absent from
the Colony
but their names are or may be unknown-Be it therefore enacted and
ordained that
(in order to prevent any failure of justice in such cases) every such
copartnership and
the several members thereof or the persons or person having carried on
business
under the style of any such copartnership may be sued in any action at
law in the
name or names of any one or more of the members of such copartnership on
behalf of
.all the members composing the same or in the name or names of any such
agent or
.agents for and on behalf of such copartnership so as that in all cases
wherein but for
this Ordinance it would have been necessary to mention the names of all
the members
.composing any such copartnership it sball be sufficient to mention the
name or names
.of such one or more member or members only or of such agent or agents on
behalf of
such copartnership.
1'7. And be it enacted and ordained that every judgment obtained or order
made
in any such action as last aforesaid shall have the sarne effect and
operation upon tae
persons and property both real and personal of such copartnership and of
the several
members thereof whether such property be joint or. separate as if every
member of such
-copartnership had been actually and in fact a defendant in the action
and every such
judgment or order may be enforced against all such property as in
ordinary cases of
the like nature.
18. Provided always and be it enacted and ordained that in every summons
and
other writ issued and declaration or other pleading filed on behalf of
the plaintiff in any
action brought under the provisions of the two preceding sections the
style or firm of
the copartnership shall be specified and it shall distinctly appear that
the defendant or
defendants sued is or are so sued for and on behalf of such
copartnership-And provided
also that no agent sued on behalf of any such copartnership shall by
reason only of
his being so sued be incompetent as a witness in the action on behalf
either of the
plaintiff or of the copartnership or be liable either in person or
property to any
judgment obtained in such action.
18. And (for supplying a more full and effectual remedy in this behalf in
all cases
in which there are joint contractors one or more of whom shall be absent
from the
Colony)--Be it enacted and ordained that no plea in abatement shall
hereafter be re-
ceived on behalf of any defendant in any action in respect of the
non-joinder therein
of any person alleged to leave been a joint contractor with such
defendant unless it be
expressly alleged in such plea that the person not joined is then
resident at some place
within this Island or its dependencies and where in particular.
20. And be it enacted and ordained that nothing in this Ordinance
contained shall ordinance to ex-
tend only to case
-extend to any action of trespass or other action in tort (troves or
detiuue excepted) but of contract.
-to actions on or arising out of contract only.
299
colv,rt,iorsl,i,ts -
kill of wHOSe
ntemhers are nut
known.
Sne17 copartner-
ships may be
sued in the mute
()t 7111)' one tt1e717-
ber or agent.
.lndR7uent
against such
defendant. to
operate nytinet
toe coyartuer_
Ship,
Proviso.
Agent net to 17e
incompetent as n
witness.
Pleas in abate-
ment.
ORDINANCE No. 2 of 1855.
Foreign Attachment.
21. And be it enacted and ordained that absence from the Colony shall for
the
purposes of this Ordinance be taken to be absence for the time being
whether the party
shall ever have been within this Island or not.
The c°'''r '''°
'nuMce tnlos trait 22, And be it enacted and ordained that in all cases in
which no provision or no-
award costs. sufficient provision in that behalf is by this Ordinance made
it shall be lawful for the said.
Supreme Court from time to tithe for the purpose of facilitating or more
fully or effec-
tually carrying any or either of the objects of this Ordinance into
execution upon any
application in a summary way made for that purpose by or on behalf of any
person
interested in any matter by this Ordinance intended to be provided for or
without any
such application to make and prescribe all such rules and orders either
general or ap-
plicable to any particular case only touching any of the matters intended
to have been
hereby provided for and touching also the manner of proceeding before or
applying -
to the said Court and also the execution of writs and orders and tire
allowance
and taxation of costs under this Ordinance as to the Court shall seem
expedient and such
rules and orders from time to time to revoke or alter as to the Court
shall appear
to be requisite and all rules and orders so made and prescribed shall be
of the same force
and effect as if they had been inserted in this present Ordinance-And the
said Court
shall in all cases whatsoevor of applications made to or proceedings had
or taken before
or by authority of the said Court or otherwise under this Ordinance have
full power
to award or refuse costs the same to be paid by and to such party or
parties as the
Court shall in each case think fit to order.
SCHEDULE A.
VICTORIA by the Grace of God of the United Kingdom of Great. Britain and
Ireland Queen.
Defender of the Faith-To the Sheriff of Hongkong and its dependencies
greeting-Whereas A. B. bath
lately in the Supreme Court of Ilongkong commenced an action at law
against C. D [or against C. D.
and );, h,] and the writ of suuunons (or cayias' in the said action has
been returned [or has as to the
said C. D. been'returned] non ext invrntxx and the said A. B. hatli
caused to be flied in the said Court
the affidavit required by the Ordinance of this Island intituled °` An
Ordinance to provide for and regulate
process in actions at law against persons absent from the Colony,' Now we
command yon that you.
attach in the hand of G. H. [or G. Ii. Ii,. M and I. B. respectively]
all and singular the lands
itcreditaments monks securities for money chattels and other property
which the said C. D. is possessed
of or entitled to or otherwise beneficially interested in and which are
or is in the custody or under the
controul of the said G. H. [or G. H. IL. VI, and I. Fs, respectively] at
the time of your serving the said
Cx. H. [him or them J with this writ and also all and every the sums and
sum of money in which the
the said G. H. is [or the said G. .1T. R. 11T. and I. K. or either of.
them are or is] indebted to the said
C. D. at the time of such service-And we further cotrimand you that you
summon the said G. $. [o~
the said G. H. R. DT. and T. Ii. unit each'ot them] that he (ot~ they] be
and appear before the said court
on the day of then and there to be examined touching the premises and
further
to do and receive what the said Court shall then and there consider in
this behalf and have you then
there this writ.
Witness the Honourable
Justice of the said Court
day of in the
Our Chief
aforesaid this
year of our reign.
(Official seal.)
ORDINANCE No. 2 of 1855.
Fmeign Attachment.
[Notice to be written under or annexed to theprecedirtp.]
TAKE NOTICE that from the time of your being served with this writ all
and singular the lands
and other hereditaments monies and chattels bills bonds and,other
property of whatsoever nature in
your custody or under your controul belonging to'the above-named C. D or
to or in which lie is legally
or equitably entitled or otherwise beneficially interested and whether
solely or jointly with any other
person or persons and all debts of every kind clue by yon to the said C.
D. although the same or part
thereof may be payable only at a future day are to the extent of the
right title and interest of the said
C. D. therein attached in your hands and [subject to any bn>t& fine prior
claims or liens thereon] are
liable to the satisfaction of the above-named A. B. in the
above-mentioned action--And if you, shall
before this attachment is dissolved sell or otherwise knowingly dispose
of or part with any such property
or pay over any such debt or any part thereof without the leave of the
Supreme Court you will be liable
to pay such damages to the said A. B. as the said Court shall in that
behalf think fit to order.
A. B,
1'0 Mr. G. A. [or G H. R. 1T. and 1. Ii. severally.]
In the Srdrrcrnc G'oxrt of ~
Hongkong.
[or L. M. Plaintiff's Attorn-ey.]
SCHEDULE B.
BETWEEN
A. B. Plain.ti,ff
and
(:. D. Dc,/brtdant [or C. D:
E. If. Defendants.]
WIiLREAS an action has been commenced in this Court at the suit of the
above-named A. 13,
against the above-named C. D. [or C. D. and E. F.] to recover [state
sTcortT.y the cause of action in
substance and the amorcnt stvurn to if,fur a snnt certain] and it being
alleged that the slid C. D, does
not reside within this Island or its dependencies a wr;t of foreign
attachment has been issued returnable
on the day of wherein G. I-L. of ~ is garnishee [or G. II. of
13, M. Of and I. Ts, of are garnishees]-Notice is hereby given thereof and
that if at any time before final judgment in this action the said C. D.
or any person on bra behalf
will give the security and notice and file the appearance or plea
required by the Ordinance of this
Island intituled [insert title] the said attachment may be dissolved.
Dated this day of 1$6
A. B.
[or L. 11Z. Plaint$ff'a Attorney.]
SCHEDULE C.
KNOW ALL MEN by these presents that we A, B. of
yu. N. 0. of 4-c, and I'. Q. of yc. are and each of us is jointly and
severally bound unto-
C. D, late of yc, in the penal sum of $ to be paid to the said C. D
or,his certain attorney executors administrators or assigns-For which
payment to be
cede we jointly and severally bind ourselves and each and every of us and
our respective
heirs executors and administrators firmly by these presents. Sealed with
our seals.
Dated this day of
WHEREAS an action at law liath lately been commenced in the Supreme Court
of Hongkong at-
the.suit of the above-bounden A. B. against the above-named C. D. [or C.
D. and another] and a writ
ry:. v^ bf foreign attachment hath on the application of the said A. B.
been issued therein and whereas the.
Foreign Attachment.
said A. B. being about to proceed in the said action it is necessary for
him to give the security required
by the Ordinance of this Island intituled do Ordinance tc provide fur
and regulate process in actions
at law against peg-song absent from the Colony and the above-bounden N.
0. and P. Q. have agreed to
become his sureties-Now the condition of this obligation is that if the
said A. B. his executors or
administrators shall pay or cause to be paid to the said C. D. his
executors or administrators all and
every the sums and sum of money which he shall receive or recover in or
by reason of the said action
in case the judgment obtained therein stall be hereafter reversed or
vacated and also all and every the
sums and sum of money damages costs and charges which by the said Court
shall at any time hereafter
be adjudged or ordered to be paid by the said A. B. his executors or
administrators to the said C. D.
his executors or administrators for or by reason or on account of or in
any manner relating to the said
action and the said attachment or either of them or any proceedings
hitherto taken or hereafter to be
taken in or under the same respectively or any judgment that may be
obtained or any execution or
eaocutions that may be issued in the same action-Then this obligation
shall be void otherwise it is to
remain in full force.
in ac Suprcntc Court ofd
' Hongkong.
SCHEDULE D.
A. B. Plaintif
BETWEEN and
C. D. & h. F. Defendants.
nta.
WHEREAS an action has been commenced in this Court at the suit of the
above-named A. 13.
against the above-named C. D. and B. lr', as copartners carrying on
business under the style or firm of
and no appearance has been entered for the said C. D. in the said action
and he is
alleged to be absent from the Colony-Notice is hereby given that unless
the said C. D. or some person
on his behalf shall enter an appearance for the said C. D. to the said
action on or before the
day of the said A. I3. will cause such appearance to be entered for trim in
pursuance of the Ordinance of this Island for regulating yroQCas in
actions against persons absent
frorn the Colony and mill proceed in the said action as if the said C. D.
bad resided in $ongkong and
had appeared in person.
Dated this day of 186
A. B.
Lor L. T. Plaintes Attorney.]
[Repealed by Ordinance No. 4 of 1887.]
NoTC.-1'or fZegulre Grrzrralea under this Ordinance see lisle 5th larch,
18:ir, gazetted the 7th
of the same month and Rule 14th November, 18:i9, gazetted the 26th of the
same mouth.
293
Title.
Preamble. On any return of non est inventus and on affidavit filed, &c. plaintiff may proceed against an absent defendent by foreign attachment.
Form of attachment and how served.
Provis as to proof where cuase of action accured.
Public notice to be given.
Property and debts bound from the time of attachment served.
Enquiry as to property in garnishee's hands.
Disposal of goods, &c. by leave fo Court.
After attachment returned plaintiff may proceed in the action.
Court to determine what property is to continue subject to the attachment.
Plaintiff to enter into a bond to account, &c.
After judgment plaintiff may issue a fieri facias.
What may be taken under it.
Provision for dissolving foreign attachment.
Provision enabling absent defendant to come in and defend within two years.
Property in possession of any co-defendant.
Provision in case of defendants sued as copartners.
Such copartners absent from the Colony to have notice.
Copartnerships all of whose members are not known.
Such copartnerships may be sued in the name of any one member or agent.
Judgment against such defendant to operate against the copartnership.
Proviso.
Agent not to be incompetent as a witness.
Pleas in abatement.
Ordinance to extend only to cases of contract.
The term 'absence.'
The Court may make rules and award costs.
302
Abstract
293
Title.
Preamble. On any return of non est inventus and on affidavit filed, &c. plaintiff may proceed against an absent defendent by foreign attachment.
Form of attachment and how served.
Provis as to proof where cuase of action accured.
Public notice to be given.
Property and debts bound from the time of attachment served.
Enquiry as to property in garnishee's hands.
Disposal of goods, &c. by leave fo Court.
After attachment returned plaintiff may proceed in the action.
Court to determine what property is to continue subject to the attachment.
Plaintiff to enter into a bond to account, &c.
After judgment plaintiff may issue a fieri facias.
What may be taken under it.
Provision for dissolving foreign attachment.
Provision enabling absent defendant to come in and defend within two years.
Property in possession of any co-defendant.
Provision in case of defendants sued as copartners.
Such copartners absent from the Colony to have notice.
Copartnerships all of whose members are not known.
Such copartnerships may be sued in the name of any one member or agent.
Judgment against such defendant to operate against the copartnership.
Proviso.
Agent not to be incompetent as a witness.
Pleas in abatement.
Ordinance to extend only to cases of contract.
The term 'absence.'
The Court may make rules and award costs.
302
Title.
Preamble. On any return of non est inventus and on affidavit filed, &c. plaintiff may proceed against an absent defendent by foreign attachment.
Form of attachment and how served.
Provis as to proof where cuase of action accured.
Public notice to be given.
Property and debts bound from the time of attachment served.
Enquiry as to property in garnishee's hands.
Disposal of goods, &c. by leave fo Court.
After attachment returned plaintiff may proceed in the action.
Court to determine what property is to continue subject to the attachment.
Plaintiff to enter into a bond to account, &c.
After judgment plaintiff may issue a fieri facias.
What may be taken under it.
Provision for dissolving foreign attachment.
Provision enabling absent defendant to come in and defend within two years.
Property in possession of any co-defendant.
Provision in case of defendants sued as copartners.
Such copartners absent from the Colony to have notice.
Copartnerships all of whose members are not known.
Such copartnerships may be sued in the name of any one member or agent.
Judgment against such defendant to operate against the copartnership.
Proviso.
Agent not to be incompetent as a witness.
Pleas in abatement.
Ordinance to extend only to cases of contract.
The term 'absence.'
The Court may make rules and award costs.
302
Identifier
https://oelawhk.lib.hku.hk/items/show/87
Edition
1890
Volume
v1
Cap / Ordinance No.
No. 2 of 1855
Number of Pages
10
Files
Collection
Historical Laws of Hong Kong Online
Citation
“FOREIGN ATTACHMENT ORDINANCE,” Historical Laws of Hong Kong Online, accessed November 19, 2024, https://oelawhk.lib.hku.hk/items/show/87.
