Absconding Debtors Newcastle Act 1861 No 11a (NSW)

No. XIV.

An Act to authorize the Appointment of a Com­ missioner to issue Wri t s of Summons and Arrest at the Por t of Newcastle. [26th April, 1861.]

Cour t persons are able to evade payment of the i r debts and o ther j u s t WH E R E A S castle W r i t s of S u m m o n s or Capias ou t of t h e Supreme

by reason of the re be ing no means of issuing at New­

demands agains t t h e m by suddenly or clandest inely depar t ing out of t he Colony from t h e P o r t of Newcast le aforesaid For r emedy whereof Be it enacted by t h e Queen's Most Exce l len t Majesty by and wi th t he advice and consent of t h e Legislat ive Counci l and Legislative Assembly of New South W a l e s in P a r l i a m e n t assembled and bv t h e au thor i ty of t h e same as follows :—

to g round a W r i t of Capias to be issued he reunder and no W r i t of Capias shall be issued he reunde r unless proof by affidavit shall be first given to such Commissioner t h a t t he defendant is about to depar t ou t of t he said Colony from t h e said P o r t of Newcast le a n d of all such other facts and ma t t e r s which are or may be necessary to be given and

1. I t shall be lawful for t he Chief Jus t i ce of t he Supreme Cour t to appoint from t i m e to t i m e by Commission unde r his h a n d and the Seal of t h e said Cour t some fit person residing at Newcas t le or wi th in live miles thereof to be a Commissioner of t he said Cour t for t h e pur ­ poses of th is Act which Commissioner shall a t the ins tance of any plaintiff have power to issue W r i t s of S u m m o n s and of Capias ad respondendum i n the said Cour t against any defendant about to depar t ou t of the Colony from t h e said Port of Newcast le in cases where by law an arres t upon mesne process is now allowed in an act ion in t he said Cour t and every such W r i t of Capias shall (except where hereby otherwise provided) have t h e same force and effect as an ordinary W r i t of Capias ad respondendum issued out of t h e said Cour t a t Sydney directed to t he Sheriff.

2. N o W r i t of Summons shall be issued unde r th i s Ac t except

and established to obtain an order from a J u d g e of the said Cour t for t h e issue of an ordinary W r i t of Capias ad respondendum ou t of t h e said Cour t a t Sydney nor unless t h e plaintiff shall first give a bond of two sufficient persons (of w h o m t h e plaintiff if i n t he opinion of t he said Commissioner of sufficient abil i ty m a y be one) to t h e satisfaction of such Commissioner to t he defendant in a s u m of money to be fixed by such Commissioner not be ing less t h a n double t he a m o u n t for which t h e defendant shall be liable to be ar res ted or he ld to bai l u n d e r such W r i t condit ioned to be void on p a y m e n t t o t h e defendant of all damages costs and charges which may be adjudged to h i m in any act ion by h i m agains t t h e plaintiff and t h e Bailiff t o w h o m such W r i t of Capias shall be directed or e i ther of t h e m for or by reason of such W r i t hav ing been issued or of his be ing arrested t h e r e u n d e r or of any w r o n g or damage susta ined by h i m on account thereof or of any wrongful act or omission of such Bailiff in or about t h e execut ion thereof or otherwise in relat ion there to and of all costs charges and expenses which upon any appl icat ion by the defendant to t h e said Cour t or any J u d g e thereof for any ru le or order to set aside any such W r i t or to discharge t h e defendant from custody the reunder or to cancel any bai l bond given the reunder or otherwise in re la t ion to or connected wi th such W r i t or a n y t h i n g done the reunde r may be adjudged or ordered to be paid to t h e defendant Provided always t h a t the amoun t for which such bond shall be given shall i n no case exceed the s u m of four h u n d r e d pounds A n d such Commissioner shall for thwith

t r ansmi t such bond to t he P ro thono ta ry of t he said Cour t a t Sydney

and such P r o t h o n o t a r y shall u p o n demand deliver such bond to t he

defendant or any one apply ing for t h e same on his behalf.

3 .    I t shall no t be necessary for any order to be made to w a r r a n t

t h e i ssu ing of any W r i t of Capias unde r t h i s A c t b u t t h e Commissioner shall by m e m o r a n d u m thereon under his hand certify on whose applica­ t ion a n d on w h a t affidavit or affidavits a n d when i t was issued a n d the a m o u n t for which the defendant is t o be ar res ted or held to bai l there­

u n d e r in t he form or to t he effect following—

" This W r i t was issued th i s day of 18

" unde r t h e provisions of t he Ac t Victoria n u m b e r

" on t he appl icat ion of t h e the re in n a m e d A. B . (naming

" the plaintiff)	and upon reading the affidavit of (naming
" the deponent)	sworn on t h e day of 18

" {describing each affidavit if more than one) A n d t h e

" defendant C. D . {naming the defendant) is t o be ar res ted

" or he ld to bai l he reunder for or in t he sum of

" pounds {specifying the amount) E . E . {here to be signed,

" by the Commissioner) Commissioner unde r t h e said A c t . "

4. Eve ry W r i t of Capias issued u n d e r th i s Ac t shall ins tead of

be ing directed to t he Sheriff be directed to some person to be specially n a m e d by t h e plaintiff as a Bailiff to execute t h e same a n d such

Bailiff shall have al l t h e au tho r i t y the reunder which t h e Sheriff has

u n d e r an ord inary W r i t of Capias ad respondendum issued out of the said Cour t at Sydney directed to h im save; only t h a t such Bailiff shall no t have power to appoint a depu ty to execute t h e same b u t shall execute i t personal ly w i th such assis tant or ass is tants if any as he may

requ i re in t h a t behalf.

5. N o person shall be bound to accept t he office of or to act as a Bailiff u n d e r any W r i t issued in pursuance of th is Ac t unless he shal l consent or agree so to do A n d every person who shall consent or agree so to do shal l be b o u n d t o ac t as such Bailiff u n d e r t h e W r i t directed to h i m un t i l his whole du ty as such Bailiff u n d e r such W r i t is fully performed.

6. Every Writ of Summons and of Capias issued under this Act shall he issued under the signature and seal of the Commissioner issuing the same but in all other respects (except where other provi­ sion is hereby made) shall be in the same form and shall have all such notices and indorsements thereon respectively as are or may be required in respect of ordinary Writs of Summons and of Capias ad responden­

dum issued out of the said Court at Sydney.
7. Every Writ of Summons issued under this Act shall be the commencement of an action in the said Court by the plaintiff against the defendant and such Commissioner upon issuing any such Writ of Summons or Capias shall forthwith transmit copies thereof and of every indorsement thereon and the original affidavits upon which any such Writ of Capias was issued by him to the Office of the Protho- notary of the said Supreme Court at Sydney to be there filed and kept And it shall not be requisite to file or deliver any Praecipe for or in respect of any Writ of Summons or of Capias issued under this Act.
8. Every such Commissioner shall be entitled to receive and retain for his own use for issuing any Writ of Summons under this Act the sum of five shillings and for issuing any Writ of Capias under this Act the sum of one pound and to no other fees payment or remuneration whatsoever And every plaintiff issuing or obtaining any such Writ of Summons or of Capias shall be entitled to the same costs thereupon as he would be entitled to upon issuing or obtaining a similar Writ out of the said Court at Sydney in the ordinary way.
9. No action shall lie against such Commissioner for issuing any Writ of Capias under this Act unless the plaintiff in such action shall allege and prove that such Commissioner knowingly and wilfully issued the same without reasonable proof being given to him to warrant the issuing thereof and also that in issuing the same he acted corruptly.
10. Every Bailiff to whom a Writ of Capias issued under this Act shall be directed and who shall consent and agree to act as such Bailiff to execute the same shall make a due return thereto to the Supreme Court in like manner as the Sheriff is bound to make a Return to an ordinary Writ of Capias ad respondendum issued out of the said Court at Sydney directed to him and shall be subject to attachment and action in respect of the execution of such Writ or incident thereto and to an action at the suit of the plaintiff or defendant for any wrongful act or omission by him in or about the execution of such

Writ and incident thereto in like manner as the Sheriff is liable under	the same circumstances in respect of an ordinary Writ of Capias ad
respondendum issued out of the said Court at Sydney and directed to
him.
11. The Bailiff acting under any Writ of Capias issued under this Act shall have authority and shall be bound to take bail by bond of the defendant and sureties to himself for the appearance and ren­ dering of the body of the defendant according to the exigency of such Writ and the practice of the said Court of the same kind and in like manner in all respects as the Sheriff is bound to take bail from a defendant arrested under an ordinary Writ of Capias ad respondendum issued out of the said Court at Sydney directed to himself and such Bailiff upon such bail bond being entered into and given to him shall release the defendant from his custody under such Writ And every such bail bond shall be assignable by such Bailiff to the plaintiff and such Bailiff upon being required so to do shall assign the same to the plaintiff and the plaintiff upon such assignment thereof may sue thereon in like manner in all respects as if it were an ordinary bail bond to the Sheriff.

12. Eve ry Bailiff ac t ing unde r any W r i t of Capias issued u n d e r

th is A c t shall be bound to receive from the defendant as a deposit in l ieu of bail t h e a m o u n t for which he is to be ar res ted or held to bai l

t he r eunde r and t h e sum of t en pounds for costs in l ike m a n n e r as t h e

Sheriff is bound to do u n d e r an ord inary W r i t of Capias ad responden- dum issued out of t he said Cour t a t Sydney directed to and executed by h im A n d upon receipt of such deposit such Bailiff shall release t h e defendant from his custody unde r such W r i t and shal l fo r thwi th pay or cause to be paid over to the P ro thono ta ry of the said Cour t a t Sydney the money so deposited by such defendant as aforesaid to be held and disposed of by such P r o t h o n o t a r y according to law.

13 . Every Bailiff serving any W r i t of Summons or execu t ing any W r i t of Capias issued unde r th i s Ac t shal l be ent i t led to t h e same fees mileage and other r emunera t ion for every th ing done by h im as such Bailiff u n d e r t he provisions of th i s Ac t as t he Sheriff and his Bailiff a re or is or may be ent i t led to for the same or similar acts done by t h e m or ei ther of t h e m in serving or execut ing or otherwise in re la t ion to any ordinary W r i t of S u m m o n s or of Capias ad respon­

dendum issued out of t he said Cour t a t Sydney or t a k i n g bail there-

under and to no o ther paymen t or r emunera t ion whatever .

1 1 . Every plaintiff ob ta in ing any such W r i t of Capias unde r

th i s A c t and t h e Bailiff to whom t h e same is directed shall be jo in t ly and severally l iable to t h e defendant for any wrongful act or omission by such Bailiff in or about the execut ion of such W r i t or incident there to .

15. All proceedings in any act ion commenced by any W r i t of S u m m o n s a n d under any W r i t of Capias issued under the provisions hereof shall (except as here in otherwise directed) be t aken and had in l ike m a n n e r as if such act ion h a d been commenced by ord inary W r i t of S u m m o n s issued out of t h e said Supreme Cour t at Sydney and the said Cour t and any J u d g e thereof shall have all such and t h e same powers to set aside any W r i t of S u m m o n s or Capias issued u n d e r t h e provisions hereof or t h e service of any such W r i t of S u m m o n s or to discharge from custody any defendant arrested unde r any such W r i t of Capias and to order any bail bond given the reunde r to be cancelled and in every o ther respect as such Cour t or any J u d g e thereof has or may have in case of ord inary W r i t s of Summons or Capias ad respon­

dendum issued out of t h e said Court a t Sydney.

16.    The J u d g e s of t h e said Cour t or any two of t h e m shall a n d

may from t ime to t ime m a k e all such ru les as such Cour t or J u d g e s

may t h i n k necessary or p roper for ca r ry ing th is Ac t in to execut ion and revoke repeal a l ter and amend t h e same when and as they shall

t h i n k	fit.
17. I n t h e const ruct ion of th i s Ac t t h e word " plaintiff" shall

m e a n a person h a v i n g commenced or about to commence an action in t he S u p r e m e Cour t and t h e word " d e f e n d a n t " shall m e a n a person agains t w h o m an act ion in t h e said Cour t has been or is about to

be b rought .

No . X V .