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CHAPTER 112

OF THE

REVISED STATUTES, 1989

amended 1995-96, c. 13, s. 78


NOTE - This electronic version of this statute is provided by the Office of the Legislative Counsel for your convenience and personal use only and may not be copied for the purpose of resale in this or any other form. Formatting of this electronic version may differ from the official, printed version. Where accuracy is critical, please consult official sources.

An Act to Prevent Priority
Among Execution Creditors

Short title

1 This Act may be cited as the Creditors' Relief Act. R.S., c. 112, s. 1.

Interpretation

2 In this Act,

(a) "attachable debt" means a debt that can be made the subject of an execution order issued pursuant to the Civil Procedure Rules or an attaching order pursuant to this Act or the Civil Procedure Rules;

(aa) "clerk" means clerk of the county court for a county, and includes local deputy clerks;

(ab) "enforcement proceeding" means any proceeding authorized by this Act, the Assignments and Preferences Act, the Collection Act, Judicature Act or the Civil Procedure Rules to be taken for the purpose of enforcing a money judgment or for the purpose of enforcing the claims of creditors against the personal property of a debtor;

(ac) "exigible personal property" means any personal property of a judgment debtor that can be made the subject of an enforcement proceeding except a debt that can be made the subject of an enforcement proceeding only by way of an attaching order pursuant to this Act;

(b) "judge" means the judge of the county court of the district in which the claims are filed, and shall include a judge of another district authorized to act for the judge of the county court for the district in which the claims are filed;

(c) "judgment creditor" means a person in whose favour there is a subsisting money judgment;

(d) "judgment debtor" means a person against whom there is a subsisting money judgment;

(e) "money judgment" means a judgment or order for the recovery or payment of money or that part of a judgment or order that requires a person to pay money and includes a certificate pursuant to this Act;

(f) "notice of judgment" and "notice of claim" mean the data authorized by the regulations made pursuant to the Personal Property Security Act to be registered in the Registry to effect a registration pursuant to this Act and, where the context permits, includes the data authorized to be registered to effect an amendment, renewal or discharge of a registration;

(g) "personal property" means personal property as defined in the Personal Property Security Act;

(h) "Registry" means the Personal Property Registry established by subsection 43(1) of the Personal Property Security Act;

(i) "Supreme Court" means the Supreme Court of Nova Scotia. R.S., c. 112, s. 2; 1995-96, c. 13, s. 78.

PERSONAL PROPERTY SECURITY ACT

REGISTRATION

Registration and discharge

2A (1) A judgment creditor who has obtained a money judgment may register a notice of the judgment in the Registry in accordance with the regulations made pursuant to the Personal Property Security Act.

(2) Registration of a notice of judgment is effective for the period of years specified in the registration to a maximum of twenty years after the date of the judgment to which the registration relates.

(3) A registration may be amended or renewed by registering an amendment or renewal of the notice of judgment at any time before the registration expires but the registration shall not have an aggregate registration life of more than twenty years after the date of the judgment to which the registration relates.

(4) A judgment creditor shall discharge the registration of a notice of judgment within thirty days after the judgment is satisfied or within thirty days after the occurrence of any other event as a result of which there is no longer a subsisting judgment.

(5) Where a judgment creditor fails or refuses to comply with subsection (4), the judgment debtor or any other person with an interest in the exigible personal property of the debtor or the attachable debts of the debtor may make a written demand to the judgment creditor to discharge the registration within fifteen days after the demand is made.

(6) Where a judgment creditor fails to comply with a demand made pursuant to subsection (5) within fifteen days after it is made or fails to give to the person making the demand an order of the Supreme Court confirming that the registration need not be discharged, the person making the demand may register the discharge.

(7) On application by the judgment creditor or judgment debtor or any other person with an interest in the exigible personal property or attachable debts of the debtor, the Supreme Court may order that a registration of a notice of judgment be maintained on any condition and for any period of time or may order that the registration be discharged.

(8) No fee or expense shall be charged by a judgment creditor for compliance with a demand made pursuant to this Section. 1995-96, c. 13, s. 78.

Property bound

2B (1) Personal property of a judgment debtor shall not be bound except by registration of a notice of judgment pursuant to subsection (1) of Section 2A.

(2) Registration of a notice of judgment binds all of the judgment debtor's non-exempt exigible personal property on registration and all non-exempt exigible personal property acquired by the judgment debtor after registration from the time of its acquisition.

(3) Registration of a notice of judgment binds all non-exempt attachable debts owing to the judgment debtor on or after registration from the time the debt becomes an attachable debt except as against the person who owes the debt to the judgment debtor.

(4) Registration of a notice of judgment binds the personal property of the judgment debtor only while the judgment is a subsisting judgment.

(5) Subject to this Section, an interest acquired in personal property that is bound by a registration of a notice of judgment is subordinate to the interest of

(a) the judgment creditor;

(b) all persons entitled by this Act or otherwise to participate in a distribution of personal property subject to the interest of a creditor referred to in clause (a); and

(c) a sheriff and a representative of creditors for the purpose of enforcing the rights of a creditor referred to in clause (a).

(6) A person to whom personal property bound by a notice of judgment is transferred has priority as against the persons referred to in subsection (5) in the same circumstances that a transferee of personal property subject to a security interest perfected by registration has priority as against the secured party under subsections (1) to (4), (6) and (8) of Section 31 and Section 32 of the Personal Property Security Act, and those provisions apply mutatis mutandis.

(7) For the purpose of subsection (1) of Section 21 of the Personal Property Security Act and subject to Section 23 of that Act, the non-exempt exigible personal property of a judgment debtor and the non-exempt attachable debts of a judgment debtor are bound by registration of a notice of judgment notwithstanding that the security interest referred to in subsection (1) of Section 21 of the Personal Property Security Act attached before the notice of judgment was registered.

(8) A lien on goods bound by registration of a notice of judgment that arises as a result of the provision in the ordinary course of business of materials or services in respect of the goods has priority over the interest of the judgment creditor in the goods.

(9) An enforcement proceeding for the purpose of enforcing a money judgment shall not be commenced until a notice of judgment relating to the judgment has been registered pursuant to subsection (1) of Section 2A.

(10) Where an interest acquired in personal property that is bound by registration of a notice of judgment is subordinate to the interest of a judgment creditor,

(a) the property is subject to enforcement proceedings to the same extent as if the subordinate interest did not exist; and

(b) a person who acquires the property as a result of enforcement proceedings obtains title free of the subordinate interest.

(11) Personal property of a judgment debtor that is bound by the registration of a notice of judgment is bound for the amount of the judgment, costs and accrued interest less any amounts received by the judgment creditor.

(12) An interest in personal property is not subordinate to the interest of a judgment creditor who has registered a notice of judgment by reason only that the interest is subordinate to the interest of another judgment creditor who has registered a notice of judgment but nothing in this Section creates any priority as between judgment creditors who have registered notices of judgment.

(13) A judgment creditor is not entitled to share in the proceeds of a levy by the sheriff against the personal property of the judgment debtor pursuant to this Act unless the creditor has registered a notice of judgment pursuant to subsection (1) of Section 2A.

(14) In applying the provisions of this Act for the purpose of determining the entitlement of creditors to share in the proceeds of a levy by the sheriff, a reference to an execution or certificate or the delivery of an execution or certificate to the sheriff shall be construed as a reference to a registered notice of judgment or the registration of a notice of judgment, unless the context otherwise requires.

(15) Where a notice of judgment has been registered, the judgment creditor, the judgment debtor or any other person with an interest in personal property of the judgment debtor may apply to the Supreme Court for an order determining whether or not any item or kind of personal property is exempt, exigible or an attachable debt.

(16) A person referred to in subsection (15) may amend the registration of the notice of judgment to disclose the particulars of the order made pursuant to that subsection. 1995-96, c. 13, s. 78.

Notice of claim

2C (1) A notice of claim may be registered in the Registry in accordance with the regulations made pursuant to the Personal Property Security Act by

(a) a creditor who has applied for a warrant pursuant to the Collection Act at any time after the warrant is issued;

(b) an assignee for the general benefit of creditors under the Assignments and Preferences Act at any time after the assignment is made.

(2) The commencement of any enforcement proceeding pursuant to any of the enactments referred to in subsection (1) does not prejudice the interest of a person to whom personal property that is the subject of the enforcement proceeding is transferred without knowledge until a notice of claim relating to the enforcement proceeding is registered pursuant to subsection (1). 1995-96, c. 13, s. 78.

Exempt property

2D (1) Property that is exempt from an enforcement proceeding is not bound by the registration of a notice of judgment under subsection 2A(1).

(2) For the purpose of subsection (1), property that is exempt from seizure under Section 59 of the Personal Property Security Act is property exempt from an enforcement proceeding. 1995-96, c. 13, s. 78.

Conflict

2E Where there is a conflict between Sections 2A to 2D and any other provision of this Act or of the Assignments and Preferences Act, the Judicature Act or the Civil Procedure Rules, Sections 2A to 2D prevail. 1995-96, c. 13, s. 78.

APPLICATION

No priority

3 Subject to this Act, there shall be no priority among creditors in the distribution of proceeds of personal property taken under execution from the Supreme Court or county courts. R.S., c. 112, s. 3.

Distribution among creditors

4 (1) In case a sheriff levies money upon an execution against the personal property of a debtor where the amount indorsed to levy is one hundred dollars or upwards he shall forthwith enter in a book to be kept in his office, open to public inspection without charge, a notice stating that such levy has been made, and the amount thereof and the money shall thereafter be distributed rateably amongst all execution creditors and other creditors whose orders or certificates given under this Act were in the sheriffs hands at the time of the levy, or who shall deliver their orders or certificates to that sheriff within one month from the entry of the notice subject, however, to provisions hereinafter contained as to the retention of dividends in the case of contested claims, and to the payment of the costs of the creditor under whose order the amount was made.

(2) The notice shall state the day upon which it was entered and may be in Form A in the Schedule to this Act.

(3) Subsections (1) and (2) shall not apply to any moneys received by a sheriff as the proceeds of a sale of property by him under an interpleader order, but upon the determination of the interpleader issue in favour of the creditors, the moneys, whether in the sheriffs hands or in court pending the trial of the issue, shall be distributed by the sheriff among the creditors contesting the adverse claims.

(4) Where proceedings are taken by the sheriff or other officer for relief under any provisions relating to interpleader, those creditors only who are parties thereto and who agree to contribute pro rata, in proportion to the amount of their executions or certificates, to the expense of contesting any adverse claim, shall be entitled to share in any benefit which may be derived from the contestation of such claim so far as may be necessary to satisfy their executions or certificates and the court or judge may direct that one creditor shall have the carriage of the interpleader proceedings on behalf of all creditors interested, and the costs thereof, as between solicitor and client, shall be a first charge upon the moneys or goods which may be found by the proceedings to be applicable upon the executions or certificates.

(5) In subsection (4), "adverse claim" means any claim to contest which an interpleader issue is directed, and upon any interpleaders application the court or judge shall have a discretion to allow to other creditors who desire to take part in the contest a reasonable time in which to place their executions in the sheriffs hands, upon such terms as to costs and otherwise as may be just and reasonable.

(6) In case the sheriff shall subsequently to the entry of the notice, but within the month, levy a further amount from the property of a debtor, the same shall be dealt with as if such amount had been levied prior to the entry of the notice, but if after the month a further amount is levied, a new notice shall be entered, and the distribution to be made of the amount so levied, and of the further amount levied within a month of the entry of the last mentioned notice, shall be governed by the entry thereof in accordance with the foregoing provisions of this Section, and so on from time to time. R.S., c. 112, s. 4.

Disentitlement

5 No creditor shall be entitled to share in the distribution of money levied from the property of a debtor unless, either by the delivery of an order of execution or otherwise under this Act, he has established a claim against the debtor, either alone or jointly with some other person. R.S., c. 112, s. 5.

Proceedings by other creditors

6 If a debtor permits an execution issued against him, which is indorsed to levy for one hundred dollars or upwards, under which any of his goods or chattels are seized by a sheriff, to remain unsatisfied in the sheriffs hands till within two days of the time fixed by the sheriff for the sale thereof, or for twenty days after the seizure, the proceedings hereinafter authorized may be taken by other creditors as claimants in respect of debts, whether the same are overdue or not, provided however, that in any proceedings taken in respect of claims not due, there shall be a rebate of interest for the time which would elapse before such debt will be due. R.S., c. 112, s. 6.

AFFIDAVIT OF CLAIM

Required documents

7 (1) An affidavit, called the "affidavit of claim," to the effect of Form B in the Schedule to this Act, of the debt and the particulars thereof, may be made in duplicate by the creditor, or by one of the creditors in the case of a joint debt, or by a person cognizant of the facts, and prior to or simultaneously with the filing with the clerk of the county court of the affidavit, there shall be filed with the clerk the certificate of the sheriff showing that such proceedings have been had against the debtor as entitle the creditor to proceed under this Act.

(2) The claimant shall serve on the debtor one of the duplicates, and a notice stating that the claimant intends to file the other duplicate with the clerk of the county court, by reason of there being in the sheriffs hands an order of execution against the goods and chattels of the debtor, and that the claimant intends to call on the sheriff to levy the said debt out of the personal property of the debtor under the authority of this Act, which notice is to contain the other particulars shown in Form C in the Schedule to this Act.

(3) The notice may be either attached to the affidavit served, or indorsed thereon.

(4) Where the affidavit and notice are to be served out of the Province, the judge shall limit the time at which the next step may be taken by the claimant as hereinafter provided. R.S., c. 112, s. 7.

Service and filing

8 (1) An execution debtor may give notice in writing to the sheriff that any claims to be served upon him may be served upon any solicitor in the Province whose name and address shall be given, or by mailing the same to an address stated in the notice and the sheriff shall thereupon enter the notice in the book in Section 4 mentioned, and so long as any execution which was in the sheriffs hands at the time the notice was given shall remain in his hands, shall repeat such entry immediately below any notice (Form A), given in respect of the execution, unless the notice be revoked in writing, in which case the entry or entries thereof shall be marked "revoked."

(2) So long as the notice is not so revoked, an affidavit of claim made under this Act and the accompanying notice may, where a solicitor is named, be served upon an execution debtor by serving the same upon the solicitor, in accordance with this Act, or if mailing is required, then by mailing the same, enclosed in an envelope, postage prepaid, and registered, to the address given in the notice.

(3) In case the notice (Form C) served on a debtor does not state some place in, or within three miles of the office of the clerk of the county court with whom the affidavit of claim is filed, at which service may be made upon the claimant, or does not give the name and address of some solicitor in the Province who may be served on the claimants behalf, service of any notice, paper or document requiring service may be made upon the claimant by mailing the same prepaid and registered, enclosed in an envelope addressed to the claimant at the office of the clerk of the county court with whom the affidavit of claim is filed.

(4) The claimant shall file with the clerk of the county court of the county the sheriff of which has the execution, one of the duplicate affidavits of claim, and a copy of the notice with an affidavit of due service, which affidavit may be in the Form D in the Schedule to this Act.

(5) The copy of the affidavit and the notice shall, where practicable, be personally served upon the debtor by any literate person but if it is made to appear to a judge that the claimant is unable to effect prompt personal service, the judge may order substituted or other service, or may appoint some act to be done which shall be deemed sufficient service. R.S., c. 112, s. 8.

CERTIFICATE

Certificate of clerk

9 (1) If the claim is not contested in the manner mentioned hereinafter, the clerk of the county court with whom the affidavit of claim is filed, after ten days from the day of personal service or service under subsection (2) of Section 8, or within the time mentioned in the order, as the case may be, on application and the filing with him of proof of personal service upon the debtor of an affidavit and notice in accordance with this Act or proof of compliance with a judges order in that behalf, or upon the determination of the dispute in favour of the claimant either in whole or in part, shall deliver to the creditor or any one in his behalf a certificate to the effect of Form E in the Schedule to this Act, and in case the claim is only disputed as to a part the creditor may elect, by writing, filed with the clerk, to abandon such part and obtain a certificate as to the residue.

(2) The certificate shall be delivered to the sheriff, and thereby from the time of the delivery the claimant shall be deemed to be an execution creditor within the meaning of this Act, and to be entitled to share in whatever is made under the executions of creditors in the sheriffs hands, as if he had delivered to the sheriff an execution against the goods, and the certificate shall in like manner bind the goods of the debtor, subject, however, to the debt being afterwards disputed by a creditor as hereinbefore provided.

(3) A certificate under this Act shall in interpleader proceedings be deemed to be an execution.

(4) If the certificate is obtained by a solicitor, the name and place of abode of the solicitor shall be indorsed thereon, and if the certificate is sued out by the claimant in person, there shall be indorsed thereon a statement of some place in or within two miles of the office of the clerk of the county court with whom the affidavit of claim is filed, at which service may be made upon the claimant, and in default thereof service of any notice, paper or document requiring service, may be made upon the claimant by mailing the same prepaid and registered, enclosed in an envelope addressed to the claimant at the office of the clerk of the county court with whom the affidavit of claim is filed.

(5) On receiving the certificate, the sheriff shall make a further seizure of the goods and chattels, if any, of the debtor to the amount of the debt so claimed and the sheriffs fees and so on from time to time, in case more certificates are received after the further seizure so made.

(6) A certificate issued under this Act shall remain in force for one year from the date thereof, and no longer unless renewed, but such certificate may from time to time be renewed in the same manner as an order of execution, but notwithstanding the expiry of an order or certificate during the month within which a notice of levy having been made is under this Act required to be posted, the said order and certificate shall, as to any money levied during such month, be deemed to be in full force and effect. R.S., c. 112, s. 9.

CONTESTATION OF CLAIM

Right to contest and procedure

10 (1) The claim may be contested by the execution debtor or by a creditor interested in contesting the same.

(2) If the debtor contests the claim he shall for that purpose file with the clerk of the county court with whom the affidavit of claim is filed, an affidavit stating that he has a good defence to the claim, or to a specified part of the claim, on the merits, but the judge may dispense with the affidavit on terms or otherwise.

(3) The debtor shall file the affidavit and serve upon the claimant a copy thereof, within ten days after the personal service, or service under subsection (2) of Section 8, upon him of the affidavit of claim and the notice, or within the time which the judge by an order dispensing with personal service directs, or within any further time the judge may allow.

(4) The affidavit shall have indorsed thereon a statement of some place in or within three miles of the office of the clerk of the county court, with whom the affidavit of claim is filed, at which service may be made upon the debtor, or the address of some solicitor in the Province who may be served on the debtor's behalf, and in default thereof, service of any notice, paper or document, requiring service, may be made upon the debtor by mailing the same, prepaid and registered, enclosed in an envelope and addressed to the debtor at the office of the clerk of the county court with whom the affidavit of claim is filed.

(5) If the contest is by a creditor, he shall for that purpose file with the clerk of the county court with whom the affidavit of claim is filed, an affidavit to the effect that he has reason to believe that the debt claimed is not really and in good faith due from the debtor to the claimant but the judge may dispense with the affidavit on terms or otherwise.

(6) Such affidavit by a creditor may be so filed and a certificate thereof delivered to the sheriff at any time before distribution is made. R.S., c. 112, s. 10.

Consequences of contest

11 (1) In case of a claim being contested by a creditor after a certificate has been placed in the sheriffs hands, the sheriff, unless the judge otherwise orders, shall proceed and levy as if such contestation had not been made, and the sheriff shall, until the determination of the contestation, retain in the bank the amount which would be apportionable to the claim if valid, and he shall as soon after the expiry of the month as practicable distribute the residue of the money made amongst those entitled.

(2) The claimant whose claim is contested may apply to a judge for an order allowing his claim and determining the amount, and in case he does not make such application within eight days of his receiving notice of the contestation, or within such further time, if any, as the judge, upon the delay being reasonably accounted for, may allow, he shall be taken to have abandoned his claim and if the contestant is a creditor and there is reason to believe that the contestation is not being carried on in good faith, any other creditor may apply for an order permitting him to intervene in the contest. R.S., c. 112, s. 11.

Powers of judge

12 (1) The judge may determine any question in dispute in a summary manner, or may direct an action or issue for the trial of such question, and may make such order as to the costs of the proceedings as may be just.

(2) Where there is a dispute as to material facts, and the sum in controversy appears to be over four hundred dollars, exclusive of costs, the judge shall direct the trial to be in the Supreme Court, and may fix the place of trial, subject to any order which the Supreme Court or a judge thereof may see fit to make in that behalf, and if an issue is directed it shall be tried in all respects as if it had been an action in the Court in which it is ordered to be tried. R.S., c. 112, s. 12.

Examination

13 The same proceedings may be had for the examination of parties and others either before or at the trial as may be taken in an ordinary action, and such proceedings may also be taken prior to the application to the judge and as a foundation therefor. R.S., c. 112, s. 13.

PROCEEDINGS IN ANOTHER COUNTY

Certificate

14 When a creditor has taken in one county the prescribed proceedings in respect of his claim, and desires to establish his claim for the purposes of this Act in another county also, he may do so by obtaining from the said county court clerk another certificate (Form E), and delivering the same to the sheriff of such other county, and the delivery of the certificate to the sheriff shall have the same effect for the purposes of this Act in the county in which the same takes place, from the day of the delivery, as if a new notice and affidavit of claim had been served for the county, and other proceedings had in respect thereof under the previous provisions of this Act. R.S., c. 112, s. 14.

Execution in any county

15 A creditor entitled to a certificate from the county court clerk may sue out an order of execution against personal property into any county in the same manner as on an ordinary judgment. R.S., c. 112, s. 15.

Effect of decision and right to certificate

16 (1) In case a claim is contested in one county the decision thereon shall, as between the parties to it, determine the amount of the claim for the purposes of this Act in all other counties in which the claim is filed and the certificate of the clerk of the county court of the county in which the trial has taken place of the result thereof shall be prima facie proof of the decision.

(2) A certificate shall, upon payment of a fee of fifty cents, be granted to any party to the proceedings who applies therefor. R.S., c. 112, s. 16.

Deemed execution

17 A creditor who has recovered a judgment in any court other than in the Supreme Court or the county court may serve upon the sheriff a memorandum of the amount of his judgment and of the costs to which he is entitled, certified under the hand of the clerk of the court, in case there is such clerk, and if not under the hand of the presiding justice, and the memorandum so served shall have the same effect for the purposes of this Act as if the creditor had delivered to the sheriff an order of execution directed to the said sheriff from a county court or a certificate from such clerk under this Act. R.S., c. 112, s. 17.

ENTRIES TO BE MADE BY CLERK

Entry book

18 (1) The clerk of the county court shall keep a book in which, before granting a certificate or issuing an execution for a claim, he shall enter the following particulars with reference to every claim in respect of which he gives a certificate under this Act:

(a) the name of the claimant and of the debtor;

(b) the date of entry of judgment;

(c) the amount of debt, exclusive of costs;

(d) the amount of costs;

(e) if the proceedings have been set aside, this fact, and shortly the reason therefor.

(2) The entry shall, for the purposes of this Act, be an award of judgment for the debt and costs, and shall, except as to lands, have the same effect as an entry of judgment for default of defense to a claim for a liquidated demand only and the clerk shall index the entries in the book alphabetically under the name of every debtor.

(3) If the original papers are lost or destroyed, a copy of the entry in the book shall be evidence of all matters therein set forth. R.S., c. 112, s. 18.

Extension of time for payment

19 (1) With respect to claims, the judge, before or after a certificate is issued by the clerk under this Act or delivered to the sheriff, may, on the application of a debtor and notice to a claimant, give to the debtor further time to pay the claim where the judge is of the opinion that this can be done without injustice to the creditor, or may give to the debtor further time on terms which in the opinion of the judge may be just, and there may be successive orders for this purpose, but no claim shall be delayed by such orders for more than three months in all.

(2) This Section shall not apply to creditors who have obtained judgment in the ordinary way and the orders for time are not to prejudice executions obtained by such creditors on such judgments. R.S., c. 112, s. 19.

PAYMENT BY DEBTOR

No further proceedings

20 (1) In case the debtor, without any sale by the sheriff, pays the full amount owing in respect of the executions and claims in the sheriffs hands at the time of such payment, and no other claim has been filed with the clerk of the county court, or in case all executions and claims in the sheriffs hands are withdrawn, and any claims served are paid or withdrawn, no notice shall be entered as required by Section 4, and no further proceedings shall be taken under this Act against the debtor by virtue of the executions having been in the sheriffs hands.

(2) Save as aforesaid, after a certificate has been filed with the sheriff, the withdrawal or expiry of the order upon which the proceedings are founded, or any stay upon the order, or the satisfaction of the plaintiffs claims thereon, or the setting aside or return of the order, shall not affect the proceedings to be taken under this Act, and except so far as the action taken in regard to the order may affect the amount to be levied, the sheriff shall proceed and levy upon the goods of the debtor as he would have proceeded had the order or orders remained in his hands in full force to be executed.

(3) In case a debtor voluntarily and without any sale by the sheriff pays to the sheriff part of the amount owing in respect of an execution or claim in the sheriffs hands, and there is at the time no other execution or claim in the sheriffs hands, the sheriff shall apply the same on the execution or claim so in his hands, and Section 4 shall not apply to the money so received by the sheriff. R.S., c. 112, s. 20; revision corrected 1998.

Priority of costs

21 Where proceedings have been taken against a debtor under the rules of the Supreme Court absconding debtors, and his personal property has been attached before an execution has been placed in the hands of the sheriff, and sold under the order of the court or a judge, the cost of the order for sale or if there be more than one, the one first placed in the sheriffs hands, and the proceedings thereon, shall have priority over the claims of all other creditors, but otherwise the sheriff shall distribute such personal property under this Act, and for such purposes the moneys realized from such sale shall be deemed personal property of the debtor in the hands of a sheriff, and, except as respecting such personal property, shall realize the estate of the debtor as provided by the rules respecting absconding debtors. R.S., c. 112, s. 21.

COSTS

Items included

22 The clerk shall ascertain and state in the certificate the amount of the costs to which the claimant is entitled as against the debtor and such costs shall be the following:

(a) the fees to be allowed to the sheriff and the clerk of the county court shall be the same as they respectively are allowed for like proceedings in the county court;

(b) where there is no contest, the sum of five dollars for the fees of a solicitor, if employed;

(c) in case of a contest, such additional costs as the judge or taxing master may allow according to the scale of the Supreme Court or county court applicable to the amount in dispute;

(d) the costs of obtaining an order for substituted service, or other similar service, and of such service, or the costs of and incidental to service out of the Province, in either case to be taxed by the judge, except in Halifax County, where they may be taxed before the taxing master. R.S., c. 112, s. 22.

DISTRIBUTION

Funds of debtor

23 Where there is in any court a fund belonging to an execution debtor, or to which he is entitled, the same or a sufficient part thereof to meet the claims in the sheriffs hands may, on the application of the sheriff or any party interested, be paid over to the sheriff, and the same shall be deemed to be money levied under execution within the meaning of this Act. R.S., c. 112, s. 23.

Amount levied less than claims

24 (1) Where the amount levied by the sheriff is not sufficient to pay the execution debts and other claims with costs in full, the money shall be applied, after retaining the sheriffs fees and after payment in full of the taxed costs and the costs of the execution, to the creditor at whose instance and under whose execution seizure and levy were made, to the paying in priority to all other claims the wages or salaries of all persons in the employment of the execution debtor at the time of the levy or within one month before the making of the levy, not exceeding three months wages or salary, and such persons shall be entitled to rank rateably with other creditors for the residue, if any, of their claims.

(2) If, however, there be insufficient money, after paying the costs and fees as hereinbefore provided, to pay in full the privileged claim for wages or salaries, such claims shall be paid rateably.

(3) After the payment of the sheriffs fees, the taxed costs and the costs of the execution and of said privileged claims for wages or salaries as herein provided, then the balance, if any, of the moneys in the hands of the sheriff shall be applied to the payment, rateably, of all other debts and costs of the creditors who have complied with this Act. R.S., c. 112, s. 24.

Additional amounts levied

25 The sheriff, if directed by an indorsement upon the certificate, shall, in addition to the amounts named in the certificate, levy interest thereon from the date of the certificate or the date named in that behalf in the certificate, and also the sum of one dollar and thirty-five cents for the disbursements on every renewal of the certificate, and where such renewal is made upon the application of a solicitor, he shall levy the further sum of one dollar and twenty-five cents for the solicitor's costs on the renewal. R.S., c. 112, s. 25.

Poundage

26 Where money is to be distributed by a sheriff under this Act, the sheriff shall not be entitled to poundage as upon separate claims, but only upon the net proceeds of the estate distributable to him, and at the same rate as if the whole amount had been payable upon one claim. R.S., c. 112, s. 26.

Money made

27 (1) Where money is made upon a claim the same shall be taken for the purpose of the sheriffs return, and otherwise to be made upon all the claims or certificates entitled to the benefit thereof, and the sheriff shall, upon payment being made to the person entitled upon such a claim or certificate, indorse thereon a memorandum of the amount so paid, but he shall not, except on the request of the party so issuing the claim, or by direction of the court out of which the same issues, or of a judge having the authority of a judge of such court, return the claim until the same has been fully satisfied or unless the same has expired by effluxion of time, in which case the sheriff shall make a formal return of the amount made thereon.

(2) The like proceedings may be taken to compel payment by the sheriff of money payable in respect of an execution or other claim as can now be had to compel the return by the sheriff of an order of execution. R.S., c. 112, s. 27.

Particulars for sheriffs book

28 The sheriff shall, pending the distribution of moneys levied, keep in the book mentioned in Section 4, in his office a statement according to Form F in the Schedule to this Act, showing, in respect of any debtor of whose property money has been levied, the following particulars:

(a) the amounts levied and the dates of levy;

(b) each execution, certificate or order in his hands at the time of entering the notice (Form A) required by Section 4, or subsequently received during the month, the amount thereof for debt and costs and the date of receipt, and such statement shall be amended from time to time as an additional amount is levied, or a new execution, certificate or order is received. R.S., c. 112, s. 28.

Information from sheriff

29 The sheriff shall at all times, without fee, answer any reasonable questions which he may be asked orally in respect to the estate of the debtor by a creditor or any one acting on behalf of a creditor, and shall facilitate the obtaining by him of full information as to the value of the estate, and the probable dividend to be realized therefrom in his county, or any other information in connection with the estate which the creditor may reasonably desire to obtain. R.S., c. 112, s. 29.

Distribution by sheriff

30 Where the money levied is insufficient to pay all claims in full and the time has come for distributing the money levied, the sheriff may forthwith distribute the same, as directed by this Act, or he may first prepare for examination by the debtor and his creditors, a list of the creditors entitled to share in the distribution of the amount levied, with the amount due to each for principal, interest and costs, the list to be arranged so as among other things to show the amount going to each creditor under this Act, and the total amount to be distributed, and the sheriff may deliver or send, prepaid and registered, by post, to each creditor or his solicitor, a copy of the list, with the several particulars aforesaid, and in such case the further proceeding may be as follows:

(a) if within eight days after all the said copies have been delivered or posted, or within any further time the judge may allow, no objection is made as provided by this Act, the sheriff shall make distribution forthwith pursuant to such list;

(b) in case an objection is made, as provided by this Act, the sheriff shall forthwith distribute such an amount of the money made to such persons pari passu as may not interfere with the effect of the objection in case the same should be allowed;

(c) the sheriff may disregard objections which are frivolous or manifestly insufficient to interfere with the distribution proposed, and distribute as if such objections had not been made;

(d) any person prejudiced by the proposed scheme of distribution may contest the same in the manner following: namely, by giving notice in claiming to the sheriff, stating therein distinctly his objections to the scheme, or any part thereof, and the grounds of objection, and by at the same time delivering to the sheriff an affidavit of previous service of copy of the notice on the debtor and creditors interested in resisting the objection, unless the judge shall by order have dispensed with service, or an affidavit of service as the judge shall have sanctioned;

(e) the contestant shall within eight days thereafter apply, upon notice to the judge for an order adjudicating upon the matter in dispute, and otherwise the contestation shall be taken to be abandoned and the notice may be in the Form G in the Schedule to this Act;

(f) the judge may determine any question in dispute in a summary manner, or may direct an issue or action for the trial of such question, either by a jury or otherwise, and may make such order as to the costs of the proceedings as may be just;

(g) in the event of a claimant under a contestation being held not entitled, or only entitled to part of his claim, the money retained pending contestation, or the portion as to which the claimant shall have failed, shall be distributed among the execution creditors and other creditors who would have been entitled thereto, as the same would have been distributed had the claim in respect thereof not been made. R.S., c. 112, s. 30.

Directions by judge

31 In case several creditors are interested in a contestation, either for or against the same, the judge shall give such directions for saving the expense of an unnecessary number of parties and trials, and of unnecessary proceedings, as may be just, and he shall direct by whom and in what proportion any costs incurred in the contestation or in any proceedings thereunder shall be paid, and whether any and what costs shall be paid out of the money levied. R.S., c. 112, s. 31.

Order to levy

32 (1) The judge may, if he sees fit, direct the sheriff to levy for the amount sufficient to cover a claim which is in dispute or part thereof, or in case it appears to the judge that it is improbable that the defendant has other sufficient property, he may order the sheriff to retain in his hands during the contestation the share which if the claim is sustained will be apportionable to it, or may make an order combining the orders above authorized, or such similar order as may be just.

(2) An order to levy under this Section shall clothe the sheriff with the same authority as he would possess under an order of execution duly issued against the debtor, directing the sheriff to levy the right amount out of the goods of the debtor. R.S., c. 112, s. 32.

Decision binding

33 The decision under this Act of a county court judge or a judge of the Appeal Division of the Supreme Court on an appeal, shall bind all creditors, unless it appears that the decision was obtained by fraud or collusion by the parties to the contestation. R.S., c. 112, s. 33.

Deposit of unpaid money

34 (1) In case a sheriff has money in his hands which, by reason of the provisions of this Act or otherwise, he cannot immediately pay over to the execution creditors or other claimants under this Act, he shall deposit the money, whenever the same amounts to one hundred dollars, in some incorporated bank designated for this purpose, from time to time, by the Governor in Council.

(2) The deposit to be made in the name of the sheriff, but to a special account to his name as trustee for the creditors of . . . . . . . . . . (the debtor). R.S., c. 112, s. 34.

ATTACHING ORDERS

Attachment of debt

35 (1) Where there are in the sheriffs hands several executions and claims, and there are not or do not appear to be sufficient goods to pay all and his own fees, he may apply for an order attaching any debt owing to the execution debtor by any person resident in the county of such sheriff, whether the debt is owing by such person alone or jointly with another person resident or not resident in such county, and to procure the attachment the sheriff may take the same proceedings as a creditor, and in such case an order of execution or other claim in the course of the proceedings may be directed to him in the same manner as if the attachment were by a creditor and the proceeds of the debts attached shall be distributed in the same manner as if he had realized the same under execution.

(2) In case the sheriff does not take such proceedings, any person entitled to distribution may take the same for the benefit of himself and all other persons entitled to distribution as aforesaid, and the person owing the attached debt shall pay the same to the sheriff.

(3) Any judgment creditor who attaches a debt shall be deemed to do so for the benefit of himself and all creditors entitled under this Act, payment of such debt shall be made to the sheriff, who, in making distribution, shall apportion to such judgment creditor a share pro rata, according to the amount, upon his judgment, of the whole amount to be distributed under the provisions of this Act, but such share shall not exceed the amount recovered by the garnishee proceedings unless the judgment creditor has placed an order in the sheriffs hands.

(4) Money garnisheed and paid into the sheriffs hands shall be deemed to be money levied under execution within the meaning of this Act, except that, unless the garnishee proceedings were taken by him, the sheriff shall only be entitled to charge poundage upon such moneys at the rate of one and a quarter per cent.

(5) In case a garnishee under an order of the court pays to the attaching creditor, or in case a garnishee without notice that the sheriff is entitled, pays the amount of his debt into court and the same is paid out to said creditor, the sheriff may recover from the creditor the amount so received, after deducting any costs that may have been allowed to him in such garnishee proceeding. R.S., c. 112, s. 35.

APPEAL

Appeal

36 If any party to any contestation, matter or thing upon which a judge has made or rendered any final order or judgment is dissatisfied with such order or judgment and the same is in respect to a question involving a sum greater than one hundred dollars, he may appeal therefrom to the Appeal Division of the Supreme Court, subject to the like practice as nearly as may be as is from time to time in force in respect of appeals from a county court or judge, unless and until rules establishing a different practice shall be made under the Judicature Act. R.S., c. 112, s. 36.

MISCELLANEOUS

Powers of judge

37 A judge, for the purpose of giving effect to this Act and carrying out its provisions, shall have all the powers which a county court or a judge thereof has by law for other purposes, and any proceedings wrongly taken under this Act may be set aside by the judge with or without costs, as he sees fit. R.S., c. 112, s. 37.

Disqualification of judge

38 If a judge is disqualified to act in a matter arising under this Act, the judge of the county court of an adjoining district shall have jurisdiction to act in his place. R.S., c. 112, s. 38.

Practice and procedure

39 Subject to this Act, the practice and procedure applicable to all proceedings taken under this Act shall be those which for the time being are prescribed for similar proceedings and matters, and under like conditions, in the Supreme Court and county courts. R.S., c. 112, s. 39.

Irregularities

40 No proceedings under this Act shall be void for any defect of form and the rules for amending or otherwise curing irregularities or defects which may from time to time be in force in the county court shall apply to this Act. R.S., c. 112, s. 40.

Law stamp and fees

41 (1) Besides the fees otherwise authorized to be paid to the clerk of the county court for his own use, there shall be levied upon the filing of every affidavit of claim, where the claim exceeds eighty dollars, the sum of fifty cents, to be paid by law stamp in the same manner as in the case of an originating notice for like amounts.

(2) Where the claim is contested on the proceedings after the order, the same fees shall be levied as are now payable on like proceedings in the Supreme Court. R.S., c. 112, s. 41.

Act does not apply

42 This Act shall not apply to lands. R.S., c. 112, s. 42.

Act subject to insolvency laws

43 This Act is not intended to interfere with the insolvency laws which may from time to time be in force in this Province, but this Act is intended to be subject to such laws and, subject as aforesaid, to apply to all debtors, whether solvent or not. R.S., c. 112, s. 43.

SCHEDULE

Form A

(Section 4)

Notice is hereby given that I have, by virtue of certain executions delivered to me against the goods and chattels of C.D., levied and made out of the property of the said C.D., the sum of $. . . . . . . . . .

And notice is further given that this notice is first posted in my office on the . . . . . . . . . . day of . . . . . . . . . ., 19. . . . ., and that distribution of such money will be made amongst the creditors of C.D., entitled to share therein, at the expiration of one month from the . . . . . . . . . . day of . . . . . . . . . .

F.G.,

Sheriff

Dated . . . . . . . . . ., 19. . . . .

Form B

(Section 7)

AFFIDAVIT OF CLAIM

THE CREDITORS RELIEF ACT

In The County Court of District Number . . . . . . . . . .

A.B. . . . . . . . . . . Claimant

vs

C.D. . . . . . . . . . . Debtor

I, A.B., of . . . . . . . . . . ., in the County of . . . . . . . . . . ., merchant, (or as the case may be), make oath and say:

1. I am the above named claimant (or the duly authorized agent of the claimant in this behalf), and have a personal knowledge of the matter hereinafter deposed to.

2. The above named debtor is justly and truly indebted to me (or to the above named claimant) in the sum of $. . . . . . . . . . for (here state shortly the nature and particulars of the claim as they are required to be stated upon a statement of claim for a liquidated demand only).

Sworn before me at . . . . . . . . . . . . .

this . . . . . . . . . . day of . . . . . . . . . . ,

19. . . . .

Form C

(Section 7)

NOTICE TO BE SERVED WITH CLAIM

THE CREDITORS' RELIEF ACT

In The County Court of District Number . . . . . . . . . .

A.B. . . . . . . . . . . Claimant

vs

C.D. . . . . . . . . . . Debtor

To the above (or within) named debtor.

Take notice that the claimant intends to file with the Clerk of The County Court of District Number . . . . . . . . . . (or as the case may be), the original affidavit of claim of which a duplicate is served herewith, and that this proceeding is taken by reason of there being in the hands of the Sheriff of the County of . . . . . . . . . . an order of execution against your goods and chattels, and that the claimant intends to call on the sheriff to levy the amount of the said debt from your personal property under the authority of the Creditors' Relief Act.

And further take notice that in case you desire to contest the said claim, or any part thereof, you must, within ten days after the service of this notice upon you, file with the Clerk of the said Court at . . . . . . . . . . an affidavit stating that you have a good defence to the said claim on the merits, or that you have such defence to a specified part of the claim, otherwise such claim will be treated as admitted by you, or may be so treated as to the part not contested.

You are further hereby notified that unless you indorse upon such affidavit filed by you a statement of some place in or within three miles of the office of the said clerk at which service may be made upon you, or the address of some solicitor in the Province of Nova Scotia, who may be served on your behalf, service may be made upon you of any notice, paper, or document requiring service, by mailing the same, enclosed in an envelope addressed to you at the office of the said clerk.

Note - In case the above notice is indorsed upon the copy of the affidavit served, the heading of the notice may be omitted. Where further time is given by a judge, the notice shall be varied accordingly.

Form D

(Section 8)

AFFIDAVIT OF SERVICE OF CLAIM

THE CREDITORS' RELIEF ACT

In The County Court of District Number . . . . . . . . . .

A.B. . . . . . . . . . . Claimant

vs

C.D. . . . . . . . . . . Debtor

I, G.H., of . . . . . . . . . . in the County of . . . . . . . . . . make oath, and say:

That I did, on the . . . . . . . . . . day of . . . . . . . . . . personally serve C.D., the above named debtor, with an original affidavit identical with the annexed affidavit, and that there was at the time the said affidavit was so served attached to (or indorsed upon) the said affidavit so served a true copy of the notice addressed to the debtor, now attached to (or indorsed upon) the annexed affidavit.

Sworn before me at . . . . . . . . . . . . .

this . . . . . . . . . . day of . . . . . . . . . . ,

19. . . . .

Form E

(Sections 9 and 14)

CERTIFICATE OF PROOF OF CLAIM

THE CREDITORS' RELIEF ACT

In The County Court of District Number . . . . . . . . . .

A.B. . . . . . . . . . . Claimant

vs

C.D. . . . . . . . . . . Debtor

I, . . . . . . . . . ., Clerk for The County Court of District Number . . . . . . . . ., do hereby certify that the above named claimant did on the . . . . . . . . . . day of . . . . . . . . . . file with me a claim against the above named debtor, for the sum of . . . . . . . . . ., together with an affidavit of personal service thereof (or as the case may require), and of the notice required by the Creditors' Relief Act, upon the debtor, and that it thereby appears that such service was made upon the debtor on the . . . . . . . . . . day of . . . . . . . . . ., 19. . . . .

And I further certify that the debtor has not contested the claim (or has only contested the sum of . . . . . . . . . portion of the claim, as the case may be), and that the claimant is entitled to the sum of . . . . . . . . . . against the debtor, and the further sum of . . . . . . . . . . for costs.

Form F

(Section 28)

SHERIFFS STATEMENT OF EXECUTIONS ON HAND

AGAINST C.D.

Form G

(Section 30)

CONTESTATION OF SCHEME OF DISTRIBUTION

THE CREDITORS' RELIEF ACT

In The County Court of District Number . . . . . . . . . .

A.B. . . . . . . . . . . Claimant

vs

C.D. . . . . . . . . . . Debtor

To F.G. and M.N., claimants of moneys levied by the Sheriff of the County of . . . . . . . . . . out of the estate of C.D.

Take notice that I will on the . . . . . . . . . . day of . . . . . . . . . . next, apply to the Judge of The County Court of District Number . . . . . . . . . . at his Chambers at the court house in the town of . . . . . . . . . . for an order adjudicating upon the right of you, . . . . . . . . . . . to rank upon the moneys for any amount whatever (or as the case may be); and further take notice that I will, upon the application, read the affidavits of E.F. and X.Y., filed with the Clerk of the Court.

Dated . . . . . . . . . ., 19. . . . .

R.S., c. 112, Sch.

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