Page images
PDF
EPUB

before any mayor, or other chief magiftrate of the city, borough, or town corporate in Great-Britain, where, or near to which the perfon making fuch affidavit or affirmation fhall refide, and certified and tranfmitted under the common feal of such city, borough, or town corporate, or the feal of the office of fuch mayor, or other chief magiftrate, which oath and folemn affirmation every fuch mayor and chief magistrate shall be, and is hereby authorized and empowered to administer; and every affidavit and affir mation fo made, certified, and transmitted, fhall, in all fuch actions or fuits, be allowed to be of the fame force and effect as if the perfon or persons, making the fame upon oath, or folemn affirmation as aforefaid, had appeared and fworn or affirmed the matters contained in fuch affidavit or affirmation, viva voce, in the open court, or upon a commiffion iffued for the examination of witneffes or of

any party in any fuch action or fuit respectively.

Provided that in every fuch affidavit and Place of abode,

affirmation, there fhall be expreffed the addition of the party making fuch affidavit or affirmation, and the particular place of his or her abode.

& Ca

[ocr errors][merged small]

Same power

extended to his

any

And be it further enacted by the autho

Majesty, &c. rity aforefaid, That in all fuits now depending, or hereafter to be brought in any court of law or equity, by or in behalf of his Majefty, his heirs, and fucceffors, in of the faid plantations, for or relating to any debt or account, that his Majefty, his heirs, and fucceffors, fhall and may prove his and their debts and accounts, and examine his or their witnefs or witneffes by affidavit or affirmation, in like manner as any subject or subjects is or are empowed, or may do by this present act.

Penalty on falfe oath or affi

davit.

Provided always, and it is hereby further enacted, that if any perfon making fuch affidavit on oath or folemn affirmation, as aforefaid, fhall be guilty of felony, and wilfully fwearing or affirming any matter or thing in fuch affidavit or affirmation, which if the fame had been fworn upon an examination in the usual form, would have amounted to wilful and corrupt perjury; every person so offending being thereof lawfully convicted fhall incur the fame penalties and forfeitures as by the laws and ftatutes of this realm are provided

against perfons convicted of lawful and corrupt perjury.

And

negroes, &.

And be it further enacted by the autho- Houfes, lands, rity aforefaid, that from and after the twenty-ninth day of September, one thousand seven hundred and thirty-two*, the houses, lands, negroes, and other S 2 hereditary

* By this clause two things are obfervable :

I. That all real estates in the Colonies shall be chargeable with the debts and demands of every kind owing to his Majefty, and his fubjects here, and be affetts for fatisfaction thereof in like manner as real estates are to specialty debts by the laws of England.

II. That such estates shall be subject to the like remedies, for seizing, extending, felling, and difpofing thereof, towards fatisfaction of fuch demands as personal estates already are in many of the faid plantations,

The FIRST is unneceffary, the fame thing being more fully eftablished by the laws on the spot.

The SECOND is both inconvenient and impolitic.

By the law of Barbadoes no freeholder, (i. e.) one poffeffed of ten acres of land, can be arrested but by being fued in the ordinary way, and judgment obtained against him or any ⚫ther perfon.

The chief justice is, (fourteen days after,) to issue a warrant to the marshal or his deputy. In the "First place, to attach any of the cotton, tobacco, ginger, fugar, or indigo, belonging to the defendant, if none fuch, then the fervants, negroes, cattle, horses, or other moveables; if none, then fuch of the lands plantations, or houfes of the defendant; and lastly if none fuch, then to arreft the person of the defendant, and him in afe cußody to keep until he hath fatisfied the plaintiff."

hereditary and real eftates, fituate or being within any of the faid plantations belonging to any perfon indebted, fhall be liable to, and

This is the fubftance of the execution, which being prescribed by an early act of the island, has been conftantly pursued ever fince without variation.

This takes in not only the writs of fi fa, and elegit, but alfo the capias ad fatisfaciendum; and indeed comprehends more than all these put together, because the marshal may, by virtue of this act, fell the whole real estate where there are no effects to be had.

See the cafe of Blancard and Goldy. 4 Mod. 222. Where it is faid by the court, that in Barbadoes freeholds are subject to debts, and are esteemed as chattles till the creditors are fatis. fied, and then the lands defcend to the heir.

The law is the fame in Antigua, and in one thousand seven hundred and twenty-three, an act was alfo paffed there for con ftituting a court, "To hold plea of foreign attachments," according to the custom of the city of London.

By uniform practice in Barbadoes, an execution taken out on a judgment obtained against an executor, even on the fimple con tract of the teftator, may be levied on any of his real estates where there are no other effects; and being appraised according to the method directed by the act, and not redeemed within the time thereby limited, the marshal, of course, paffes his bill of fale to the plaintiff. This conveys the land or tenament to him and his heirs, who holds the fame by a good title in fee simple against all claiming under the defendant or his teftator, provided he had fuch an eftate therein at the time of his death; other. wife, according to the cftate he had or could have himself conveyed. From whence it will follow, as the fact is, that notwithstanding the statute of the 3 & 4 Wm. & Mary, c. 14. docs

до

and chargeable with all juft debts, duties, and demands of what nature or kind foever, owing by any fuch perfon to his Majefty or any of his fubjects, and fhall and may be affeffed for the fatisfaction thereof in like manner as real estates are by the law of England liable to the fatisfaction, of debts due by bond or other specialty, and fhall be fubject to the like remedies, proceedings, and procefs, in any court of law or equity in any of the faid plantations respectively, for feizing, extending, felling, or difpofing of every fuch houfes, lands, negroes, and other hereditaments and real eftates, towards the fatisfaction of fuch debts, duties, and demands, and in like manner as perfonal eftates in any of the faid plantations refpectively, are feized, extended, fold, or difpofed of for the fatiffaction of debts*.

There

not extend to this island, the debts of the testator have always been fatisfied out of his real eftate in the hands of his devifee whenever there is a want of perfonal affetts. See 4 Co. 78 a. And all decrees for legacies are in fuch cafes levied thereon, though not expressly charged with payment thereof by will; for decrees of courts of equity are executed like judgments at law with fome very flight variation as to the method.

*The reafon of this practice, probably proceeded on a fuppofition that all their estates were in the nature of chattels for

the

[ocr errors]
« PreviousContinue »