Advancement of Justice Act 1841 No 9a (NSW)

No. IX.

An Act for the further amendment of the Law

and for the bet ter advancement of Just ice.

[28th

September,

1841.]

more

which Acts por t ions have from t i m e to t ime been in t roduced in to	th i s
Colony and it is expedient now to adopt o ther por t ions of t h e m	a n d

otherwise to provide

for

t he be t t e r

adminis t ra t ion

of jus t ice in

t h e

m a n n e r hereinafter	provided B e i t therefore enacted by If is Excel lency
t h e Governor of New South W a l e s w i th t h e advice of the	Legis la t ive

Council thereof	T h a t after t h e pass ing of th i s Act t h e Res ident	J u d g e
at P o r t	Phi l l ip wi th respect to all offences	commit ted wi th in t he l imi ts

of t h a t dis tr ict shall exclusively have jur i sd ic t ion and wi th respect to offences commit ted wi th in any o ther p a r t of t h e Colony the Judges a t Sydney shall exclusively have jur isd ic t ion a n d in l ike m a n n e r w i th respect to act ions and other proceedings a t Law and suits and p ro ­ ceedings in E q u i t y t he Res ident J u d g e shall exclusively have jur isdic­

t ion over

persons

res iding

and proper ty

s i tua te

wi th in P o r t

Phi l l ip

and the J u d g e s of t h e Supreme Cour t a t Sydney shall

exclusively

have jur i sd ic t ion

over persons res iding and p roper ty

s i tua te

wi th in

all

o ther pa r t s of t h e Colony b u t so nevertheless t h a t no venue shall be necessary to be laid in any case civil or cr iminal after t he pass ing of th i s Ac t o ther t h a n is now necessary to be laid in any such case.

2. Provided always and be i t enacted Tha t no th ing in t he
preceding section shall be const rued to l imit t h e jur isdic t ion of t he

Res iden t J u d g e at Po r t Phi l l ip (a l though the par ty in tended to be

affected

shal l n o t be the re resident)

or t h e jur isd ic t ion

of t he

J u d g e s

a t Sydney (a l though the p a r t y be resident a t P o r t Ph i l l ip or elsewhere) in any case where an ac t ion suit or o ther proceeding m i g h t now by lay be commenced or carr ied on in t h e Supreme Cour t in t h e absence;

of such pa r ty from N e w South

wales.

3. Provided also and be it declared and enacted Tha t i t shall be
lawful for t h e Governor for t h e t ime be ing for t h e purposes of th is

A c t by proc lamat ion for t h a t purpose issued from t i m e to t ime to

enlarge or a l ter t h e l imits of t h e

Dis t r ic t

of

P o r t

Phi l l ip

as

to

h im

shal l seem meet and the words " Po r t Phi l l ip " used in this Act

shall

be t a k e n to in tend and inc lude t h e l imits assigned to	t h a t	distr ict	for
t he t ime being.

1. Provided fur ther and be it enacted Tha t a long the borders of t he l ine now dividing or which shal l a t any t ime hereafter divide t h e said distr ict from the o ther pa r t s of New South W a l e s and t h r o u g h o u t a space or t r a c t of coun t ry ex tend ing twenty-five miles on each side of such l ine t h e J u d g e s of t he Supreme Cour t at Sydney and the Res ident J u d g e a t Por t Phi l l ip shall respectively have a concurren t

jur i sd ic t ion in all cases cr iminal as well as civil.

5. A n d be it declared and enacted

Tha t n o t h i n g

hereinbefore

conta ined shall ex tend

or be t a k e n to abr idge or affect t h e

appel late

jur i sd ic t ion

of t h e

J u d g e s of

Sydney or

t h e power of the Supreme

Cour t and of t h e Res ident J u d g e respectively to cause t he wri t s ment ioned in t h e said recited Ac t in t h a t behalf to be executed in any p a r t of t he Colony b u t t h e same jur isd ic t ion and power respectively shall cont inue as if th i s Act had not been passed.

6. Provided always a n d be i t enacted Tha t i t shall be lawful for t h e plaintiff in any act ion after j u d g m e n t recovered there in at

Por t

Ph i l l ip to cause a memor ia l of t h e same conta in ing t h e par t icu lars hereinafter ment ioned to be filed in t he office of t h e Supreme Cour t at Sydney such memor ia l be ing duly certified by t h e proper officer at P o r t Ph i l l ip and au then t i ca ted by t h e seal of t h e Cour t there and such memor ia l be ing so filed shall be deemed and t aken to be thence- forth a record of such j u d g m e n t and process shall or lawfully may thereaf ter be from t ime to t ime sued out upon the same and be executed a n d r e t u r n e d or otherwise dealt w i th in t he same m a n n e r as if such j u d g m e n t had in fact been recovered at Sydney and t h e l ike course shall or lawfully may be t a k e n and the l ike proceedings h a d at

P o r t

Cour t a t Sydney.

words a t l e n g t h w i thou t in ter l ineat ion or e rasure t h a t is to say t he n a m e s a n d residence or supposed residences and addit ions of t he par t ies plaintiff or defendant respectively t he form or n a t u r e of t he act ion and w h e n commenced t h e da te of t he s igning or en te r ing u p of t h e j u d g m e n t

a n d the a m o u n t of the verdict given and in case such j u d g m e n t shal l have been entered u p more t h a n six m o n t h s then no execut ion shall be sued ou t the reon wi thout an affidavit by t he plaintiff or some competent person on his behalf t h a t the s u m for which the wr i t is sought to be sued out is still due.

8. A n d be it enacted Tha t after the pass ing of th i s Ac t the plaintiff in any act ion at law commenced a t P o r t Phi l l ip m a y proceed by foreign a t t a c h m e n t in t he m a n n e r prescr ibed by t h e Ac t in t h a t case m a d e in respect of any defendant not res iding w i th in t h a t district and t h e plaintiff' in any act ion commenced a t Sydney m a y proceed by foreign a t t a chmen t in respect of any defendant res iding at P o r t Phi l l ip in t he same m a n n e r respectively as if such defendant resided out of t he Colony and no plea in aba t emen t for t he nonjoinder of any person as a defendant shall be susta ined where t he place of residence of such person (if the action be pend ing a t Sydney) shall be wi th in t he Dis t r ic t of P o r t Phi l l ip or where (if t h e action be pend ing in t h a t district) such place of residence shall be in any other p a r t of t h e Colony.

9. A n d be i t enacted Tha t after t h e pass ing of th is Act where a foreign a t t a c h m e n t shall be issued a t P o r t Phi l l ip no publ icat ion of not ice as to such issue shall be necessary o ther t h a n in two of the publ ic newspapers the re and where a foreign a t t a chmen t shal l issue a t Sydney in respect of any defendant res iding a t Po r t Phi l l ip no publ ica t ion of not ice shall be necessary o ther t h a n in newspapers publ ished in Sydney.

10. A n d in order t h a t no doubt may arise be i t declared and
enacted That no s i t t ing of the Supreme Cour t holden before t he

Res ident J u d g e at P o r t Phi l l ip can be t a k e n to be void nor any such

1 1 . A n d be it enacted

Tha t it shall be lawful for t h e Res ident

J u d g e a t Po r t Phi l l ip from t ime to t ime in any cause or m a t t e r civil or cr iminal pend ing before h i m to s ta te or cause or direct to be stated and to t r ansmi t t o t he J u d g e s of t he Supreme Cour t a t Sydney under his h a n d and seal for the i r opinion and decision thereon any special case or to reserve for such opinion and decision any point or points of law at his discretion and the said J u d g e s after a r g u m e n t before t h e m (or wi thou t a r g u m e n t if they t h i n k fit) shall as soon as convenient ly m a y be certify and t r ansmi t to such J u d g e the i r opinions and decision the reon accordingly which decision shal l thereafter (on t he point or

J u d g e appointed to sit in E q u i t y i t shal l be lawful for ei ther of the other J u d g e s (dur ing such absence or illness) to sit alone and hear and

determine

de te rmine

all

causes

and

m a t t e r s

in

E q u i t y

in l ike

m a n n e r

as t h e

J u d g e so be ing ill or absent m i g h t

have done if n o t

so

incapaci ta ted

b u t subject never theless to t he l ike appeal .
13 . Provided always and be it enacted T h a t every appeal from any decree or order m a d e or to be made under th i s or t he aforesaid A c t shal l hereafter be preferred to and shal l be set down and come on to be hea rd and decided before a n d by the t h r ee J u d g e s a t Sydney in such m a n n e r and form and subject t o such general ru les as they shall from t i m e to t ime prescr ibe a n d m a k e or (in t h e absence of any such rule) as t hey shall in any case direct and the decree or decision of such J u d g e s t h e r e u p o n or of t h e major i ty of t h e m in case of a difference of opinion (subject a lways to such fur ther appeal as H e r Majes ty m a y in any such case t h i n k fit to g ran t ) shall be conclusive and final.

14. A n d be i t enacted Tha t in every case where any cause or m a t t e r in E q u i t y shall a t t h e t ime of the pass ing of

t he

aforesaid

A c t

to provide for t h e more effectual adminis t ra t ion of jus t i ce have

stood

for a re -hear ing or been par t ia l ly

hea rd on appeal or pe t i t ion

for

a

re -hear ing or where in any such cause or m a t t e r t he r e shall at t he t ime of t he pass ing of th i s Ac t be a n appeal pend ing the same shall respec­ tively be proceeded in and be set down for hea r ing before t h e said th ree J u d g e s and t h e same shal l or lawfully m a y be by t h e m or t h e

major i ty

of t h e m the reupon de termined in t he same

m a n n e r as near ly

as m a y be as if t he case had been	one of appeal u n d e r t h e preceding
section.

15 . A n d be it enacted T h a t

after

t h e pass ing of th i s A c t

t h e

same powers and jur i sd ic t ion w i t h respect t o t h e examina t ion of wit­ nesses by commission or otherwise shall i n every act ion and suit in t he Sup reme Cour t of N e w South Wales be vested in and m a y be exercised by the J u d g e s of t h e said Cour t a t Sydney a n d each of t h e m and by

the Res iden t J u d g e a t

P o r t

Phi l l ip

respectively

(whether

a n y

such

witness shal l reside wi th in t h e ju r i sd ic t ion

of any

such J u d g e

or

no t )

as a re vested

in

t h e

several

Cour ts

a t

W e s t m i n s t e r

and

t h e

J u d g e s

thereof respect ively in act ions the re pend ing by t h e A c t passed in t he first year of H i s la te Majesty in t i tu led " An Act to enable Courts of " Law to order the examination of Witnesses upon Interrogatories and

"	otherwise."

16. Provided always and be i t enacted Tha t where after the

pass ing of th i s Ac t

a n y

examina t ion

t a k e n

t inder

t h e

order

of

a n y

J u d g e for t h a t purpose (whether in p u r s u a n c e

of

t he said last

reci ted

Ac t or no t ) shall be offered in evidence, t h e same m a y be read

wi thou t proof of the e x a m i n a n t be ing beyond

t h e

jur isd ic t ion

of

t h e

Cour t or unab l e to a t t end t h e t r i a l and where such examina t ion shall appear to be certified unde r t h e h a n d of t he person appoin ted or author ized to t ake t he same no proof shal l be necessary of t h e signa­ t u r e of such person Provided nevertheless t h a t Avhere it shal l be m a d e

to appear t h a t in fact

t h e

examinan t

is wi th in

t h e jur isd ic t ion

and

able to a t t end as aforesaid t hen such examina t ion shall be rejected.

17 . A n d be i t enacted

Tha t after

t h e pass ing of th i s A c t no

p lea in aba temen t for a misnomer shall be allowed in any act ion b u t t h e defendant shal l be at l iber tv to cause t h e declara t ion to be amended t/

at t h e cost of t h e plaintiff upon

a

J u d g e ' s

s u m m o n s

founded

on

a n

affidavit

of t he

r i gh t n a m e

A n d in all act ions on any wr i t t en

i n s t r u m e n t

where any of t h e par t ies the re to are	there in	designated by any in i t ia l
le t ter or le t te rs or o ther contract ion of t h e	first	or other n a m e or

names i t shal l be sufficient to designate such par t ies by such	in i t ia l
le t ter or le t ters or o ther cont rac t ion as	aforesaid.

18. A n d be i t enacted Tha t in every act ion noAv or hereafter de­

pending in t h e Supreme Cour t where in on t h e appl icat ion of c i ther of

t he

t he par t i e s plaintiff' or defendant i t shall he made to appear to t h e said Cour t or a .fudge thereof t h a t the plaintiff 's claim arises out of or in­ volves m a t t e r s of account in d ispute be tween t h e said par t ies or where a p lea of set-off is pleaded t h a t the defendant 's claim unde r such set­ off arises out of or involves any such ma t t e r s of account it shall be lawful for t h e said Cour t or J u d g e to m a k e a ru le or order if such Cour t or J u d g e shall see fit to refer all or any of such m a t t e r s of account to some Commissioner or Officer of t he Cour t or (if bo th par t ies shall so require) to some Barr i s te r a t L a w to be n a m e d in such ru le or order and for t he purposes of such reference to give all such directions from t ime to t ime and impose all such t e rms on t h e par t ies respectively as to t h e pro­ duct ion of books and wr i t ings and for t h e examina t ion of such par t ies a n d the i r witnesses and otherwise for proceeding in t he m a t t e r of such reference as t h e said Cour t or any J u d g e thereof may t h i n k fit and upon the coming in of t h e repor t or award of such Commissioner Barr i s te r or Officer the said Cour t or any J u d g e thereof shall or lawfully m a y m a k e such fur ther order or orders in t h e premises and finally give such j u d g m e n t there in and for those purposes cause such en t ry or entr ies to be made on the record in such act ion as t h e ease shal l

19. A n d be i t enacted Tha t every such Commissioner

Barr i s te r

or Officer shall for t he purposes of every such reference and repor t or award as aforesaid have t h e same powers and (unless in any case otherwise directed) shall proceed in t h e same m a n n e r as if he had been appointed an a rb i t r a to r be tween t h e par t ies in such action as aforesaid unde r a R u l e of Cour t in t he ordinary course and the costs of every such reference a n d report or award (unless t h e Cour t or a J u d g e shall have otherwise ordered) shall be in his discretion b u t where no such order shall have been made and the Commissioner Bar r i s t e r or Officer shal l also m a k e no order in t h a t behalf such costs shall form and be costs in t h e cause and after t he pass ing of th i s Ac t it shal l not be necessary in any case whatsoever of reference to a rb i t r a t ion by consent of par t ies to m a k e t h e Order of a J u d g e a R u l e of Cour t b u t

20. A n d be i t enacted Tha t on the r e t u r n of every wr i t

of

i nqu i ry or wr i t of t r i a l issued or to be issued in any of t h e cases con templa ted by the said reci ted A c t for t he more effectual adminis­

Commissioner to whom such wri t shall have been directed shall certify to the Cour t t h a t in his opinion a n oppor tun i ty should be afforded to

the re in and every such i nqu i ry or t r i a l shall be by such Commissioner and two Assessors to be n a m e d a n d summoned by h i m and t h e verdict of such Commissioner and Assessors or of t h e majori ty of t h e m shall

2 1 .    A n d be it enacted T h a t after t h e pass ing of th i s A c t i t shall

be lawful for t h e par t ies in any act ion after issue jo ined by consent to s ta te t h e facts as t h e same m a y be agreed upon be tween t h e m in t he form of a special case for t h e opinion of t h e Cour t and to agree t h a t a j u d g m e n t shall be entered the reupon for t h e plaintiff or defendant by confession or nolle prosequi or otherwise after t h e decision of such case as t h e Cour t shall t h i n k fit a n d j u d g m e n t shal l be entered accordingly and in all other cases where by any law now in force in th i s Colony the Cour t or any J u d g e thereof is empowered to

any

any quest ion of fact i t shal l be lawful for such Cour t or J u d g e to direct or allow the s t a tement of a special case for t h e opinion of t h e Court on any m a t t e r of L a w a n d it shall be lawful for t he Cour t on t h e decision of any such case to m a k e such order or orders in t h e m a t t e r and to give such adjudicat ion or cause such j u d g m e n t to be

entered the re in as t h e said Cour t shall t h i n k

fit.

22. A n d be i t enacted Tha t after t h e pass ing of th i s Ac t it shall be lawful for t h e defendant in all personal act ions (except actions for l ibel mal icious prosecut ion or arres t c r iminal conversat ion or t he debauch ing of t he plaintiff 's daugh te r or servant) by leave of a J u d g e to pay in to Cour t a s u m of money by way of compensat ion or amends in such m a n n e r and u n d e r such regula t ions as to costs a n d the form of p leading as t h e said Cour t shall by general rules or otherwise in any case prescr ibe .

23. A n d be i t enacted Tha t u p o n all debts or sums cer ta in hereafter t o be recovered in any act ion t h e j u r y or assessors (as t h e case m a y be) on t h e t r i a l of any issue or assessment of any damages m a y if they t h i n k fit allow in te res t to t h e credi tor at a r a t e not exceeding e ight pe r cent, or (in respect of any bill of exchange or promissory note) at a r a t e not exceeding twelve per cent, per a n n u m from t h e t ime w h e n such debt or sum was payable (if payable by v i r tue of some wr i t t en i n s t rumen t and at a da te or t ime cer ta in) or if payable

otherwise

t h e n

from

t h e t ime w h e n

demand

of p a y m e n t shall have

been m a d e in wr i t ing giving not ice to t h e

debtor

t h a t

in te res t

would

be claimed from t h e da te of such demand Provided t h a t no th ing herein conta ined shal l ex tend to author ize t he computa t ion of in te res t on any bill of exchange or promissory no te at a h ighe r r a t e t h a n eight per cent, per a n n u m where the re shal l have been no p lea pleaded.

24. A n d be i t enacted Tha t t he j u r y or assessors m a y on

any

t r ia l or assessment of damages give damages in t he n a t u r e

of

in teres t

if t hey t h i n k fit over and above the va lue of t h e goods at t h e t ime

of

t h e conversion i n all act ions of t rover or t respass concerning goods and over and above t h e money receivable in all act ions on any policies

of insurance m a d e after t h e pass ing of th i s

Ac t .

25. A n d be i t enacted Tha t if any witness shall after t h e

pass ing of th i s A c t be objected to as incompeten t

on t he g round

t h a t

t h e verdict or j u d g m e n t in t h e ac t ion would be admissible in evidence for or agains t h im such witness shall nevertheless be examined b u t in t h a t case no verdict or j u d g m e n t in t h a t act ion (whether in favour

of or agains t t h e pa r ty cal l ing h im)

shall a t any t ime be

admissible

in evidence for or agains t such wi tness or any one c la iming unde r

h i m

Provided

t h a t the n a m e of every witness so objected to shal l

a t t h e t r i a l at t h e reques t of ei ther p a r t y be endorsed on the record or document on which such t r i a l is h a d by some officer of t h e Cour t toge ther w i th t he n a m e of t h e p a r t y cal l ing h i m and be af terwards entered on the record of t he j u d g m e n t which j u d g m e n t or en t ry shall in any subsequent proceeding be sufficient evidence t h a t such witness was so examined .

26. A n d be i t enacted Tha t where two or more persons shall
be m a d e defendants in any personal act ion any one or more of t h e m

who shal l have a nolle prosequi entered or shall obta in a verdict

shall have j u d g m e n t for and recover his reasonable costs or suit	and
where any nolle prosequi	shal l have been en te red on any count or as

to p a r t of a declarat ion t h e defendant

shall

have j u d g m e n t

for

and

recover costs in t h a t behalf a n d also in all wr i t s of scire facias t he plaintiff shall recover his costs as well upon a j u d g m e n t by default as on a j u d g m e n t after plea or d e m u r r e r a n d where j u d g m e n t shal l be

given on a d e m u r r e r in any action whatever t he p a r t y in	whose
favour	such j u d g m e n t is given shal l have j u d g m e n t to recover his costs.

27. A n d be i t enacted T h a t it shal l be lawful for t he executors or admin i s t r a to r s of any lessor or landlord to d is t ra in upon the lands demised for any t e r m or at will for a r rears of r e n t due to such lessor or l andlord in his life t ime in l ike m a n n e r as such lessor or landlord

d u r i n g the con t inuance of t h e possession of t h e t e n a n t from w h o m such ar rears became due and t h a t all provisions in force by law re la t ing to distresses for r en t shall be appl icable to every distress so made .

28. A n d be i t enacted T h a t in all act ions hereafter

b rough t by

such executors or admin is t ra to rs (unless the Cour t or a J u d g e shall o therwise order) shall be l iable to pay costs to t he defendant in case of be ing nonsui ted or a verdict pass ing against t h e m and in al l o ther cases in which they would be l iable to costs if su ing upon a cause of act ion accru ing to themselves in the i r own r igh t and t h e defendant shall have j u d g m e n t for such costs accordingly.

29. A n d be i t enacted Tha t n o wager of law shall be hereafter

Provided t h a t every such act ion shall be b r o u g h t wi th in one year after t h e dea th of such tes ta tor or in tes ta te and t h a t the injury shall have been commit ted wi th in six calendar m o n t h s before his dea th and t h e damages w h e n recovered shall form pa r t of t he deceased's personal es ta te and t h e l ike actions m a y be main ta ined agains t executors or admin i s t r a to r s for any w r o n g commit ted by the i r t es ta tor or intes­

have been commi t t ed wi th in t he l ike period p reced ing his dea th and t h e damages recovered in such action shall be payable in l ike order of

3 1 .

A n d be it enacted Tha t after t he pass ing of th i s A c t it shal l

w i th in t h e Dis t r ic t of P o r t Phi l l ip) to t ake in execut ion a n d cause to be p u t u p for sale and sold u n d e r such wri t any equi ty of redempt ion or other equi table in teres t or any chose in act ion of or be longing to the defendant there in named and every such sale ( the same be ing by publ ic auc t ion only and in cases of equ i ty of r edempt ion be ing previously advertised in t h e New South Wales Government Gazette and in one or more newspaper or newspapers at least one calendar m o n t h before t he same shall t ake place) shall be as valid and effectual to pass al l such defendant 's r igh t and t i t le to and interes t in such equ i ty or equi table interest or chose in action as if t he same h a d been conveyed or assigned to t he purchaser b y such defendant himself Provided t h a t where any such equi ty or equi table in teres t or chose in action shall re la te to real estate a deed of " ba rga in and sa le" thereof or of such defendant ' s r i gh t and t i t le to and interest there in shall be executed by such Sheriff or Depu ty Sheriff to such purchaser and be by h i m duly regis tered w i th in one calendar m o n t h nex t after such sale.

3

E — V O L .

2.

32.

32. A n d be i t enacted T h a t

after t h e pass ing of th i s A c t

in

every ac t ion a t law now depending or hereafter to be b r o u g h t if t h e plaintiff t he re in shall by verdict or otherwise recover less t h a n the sum of forty shil l ings he shal l no t have or be ent i t led to any costs whatever (whether t h e defendant shal l have pleaded or n o t and whe the r t h e

t i t le t o l and shall have

come

in

ques t ion

or

no t )

unless t h e J u d g e

before w h o m t h e case shal l have been t r i ed shal l u n d e r his h a n d cer­ tify t h a t t h e act ion was in his opinion n o t vexat ious and t h a t t h e same was a fit and proper case for i nqu i ry in t h e Supreme Cour t Provided

t h a t in al l o ther cases t h e

plaintiff

shal l have j u d g m e n t for and shall

recover his costs

n o t w i t h s t a n d i n g

t h a t

t he

s u m

recovered

(if above

forty shil l ings) shal l no t exceed t en pounds unless i t shal l appear

t h a t

t h e same could have been recovered in one of t h e Cour t s of Reques t s and t h e J u d g e shal l certify t h a t in his opinion t h e same ough t to have been t he r e sued for.

33 . A n d be i t enacted T h a t in every case where after t he pass ing of th i s Ac t any debtor res ident in th i s Colony shall execute any conveyance or ass ignment by deed to a t ru s t ee or t rus tees of all his es ta te and effects whatsoever for t h e benefit of all his creditors (to be n a m e d in a schedule annexed to such deed wi th t h e amoun t s due to t h e m respect ively) and such deed shal l be executed by such debtor and t rus t ee or t rus tees and by t h e majori ty in n u m b e r and in va lue of such creditors or by t he agents of such of t h e m as shall be absent from t h e Colony the person of such debtor from and after t h e publ icat ion of such not ice as is hereinafter ment ioned shal l be absolutely free from arres t in execut ion a t t h e suit of any credi tor n a m e d in such schedule in respect of any debt or sum the re in included and if nevertheless ar res ted by any such credi tor he shall (on proof of t h e facts to t h e satisfaction of any J u d g e of t he Supreme Cour t ) be discharged from custody wi th or w i thou t costs to be pa id by t h e plaintiff as such J u d g e shall t h i n k fit

t o order

Provided t h a t no credi tor whose debt is unde r fifty pounds

shall (under th i s or t h e succeeding sections)

be reckoned

in

n u m b e r

b u t such debt shal l be computed in va lue only Provided also t h a t w i th respect to debts due on any ou t s t and ing bill of exchange or promissory no t e t h e ac tua l holder of which shal l t hen be u n k n o w n i t

shal l be sufficient

if t h a t fact be s ta ted in the schedule w i t h t he

a m o u n t

of such bil l or no te and t h e da te w h e n t h e same will fall due to

give

t he

n a m e

of

t h e

las t k n o w n holder a n d t h e names of t he

immedia te

par t ies	the re to .
34. Prov ided always and be i t enacted T h a t every such deed
shal l	be executed by such debtor a n d t ru s t ee or t rus tees respect ively
in t he presence of and shall be a t tes ted by some Jus t i ce of t h e	Peace

and t h a t a not ice of t h e same a t tes ted in l ike m a n n e r (and s ta t ing t ru ly where such deed is ly ing for inspect ion and execut ion) shall w i th in fourteen days n e x t after such execut ion be publ i shed in t h e

Government

Gazette

and one o ther newspaper publ i shed a t Sydney or

(if t h e debtor be res ident w i th in t h e Dis t r ic t

of

P o r t

Ph i l l ip )

in

not

less t h a n two newspapers publ i shed a t Me lbourne in t h a t	district
Provided also t h a t t he r e shall be annexed to every such	deed a t r u e

and par t i cu la r account of

all t h e p rope r ty of

every

descript ion

(wear ing appare l and necessaries to an a m o u n t no t exceeding twenty- five pounds only accepted) of which t h e debtor is possessed or any person in t r u s t for h i m or to which he or any such person is ent i t led legally or equi tab ly in possession revers ion or expectancy so far as such debtor can set for th t h e same and t h a t in case any pa r t of such p roper ty be real es ta te s i tuate in th i s Colony a memoria l of t h e deed accompanied by a copy of such las t ment ioned schedule shal l w i th in t he l ike period of fourteen days be duly registered.

85. Prov ided also and be i t enacted T h a t no such deed as aforesaid no r any deed of t h e l ike n a t u r e shal l be valid if conta in ing any provision for enabl ing the debtor to re ta in possession of his p roper ty (except as aforesaid) or any p a r t thereof or t o carry on his bus iness (other t h a n for t h e purpose of wind ing u p t h e same) or for re leasing h i m from his debts wi thou t full p a y m e n t of t he same or for m a k i n g h i m any al lowance out of such proper ty or business unless such deed shall have been executed by no t less t h a n four-fifths in n u m b e r and in value of bis credi tors b u t t h a t where any deed shall be so executed as last aforesaid (whether a t the t ime of or subsequent ly to and in connexion wi th such conveyance or ass ignment as first afore­ said) t h e same and t h e several provisions the re in shal l be b ind ing on all t he credi tors named in such schedule as aforesaid whe ther assent ing

36. Provided fur ther and be i t enacted Tha t every such deed shall a t t h e instance of any creditor on appl icat ion to be made to t h e Cour t in a s u m m a r y way for t h a t purpose be l iable to be set aside for fraud or for any wilful and ma te r i a l error or omission in e i ther of the schedules annexed to the conveyance or ass ignment as aforesaid or (at t he discret ion of t h e Cour t ) t he debtor shal l in such case be deprived of all claim u n d e r any such deed and of every benefit the reby or by

37. A n d be it enacted T h a t after t h e execut ion of any such deed as aforesaid and after t he publ ica t ion of such not ice thereof as in t h a t behalf is hereinbefore requi red all and s ingular t he p roper ty of t he debtor hav ing executed such deed of any descript ion whatsoever a n d all his r igh t s and credits inc lud ing all debts due to h i m shall be absolute ly vested in t h e t rus t ee or t rus tees t he re in n a m e d for t he purposes in and by such deed declared and such t rus tee or t rus tees m a y recover al l such p roper ty and sue for a n d recover all such debts in his or the i r own n a m e or names a n d every w a r r a n t of a t to rney or cognovit ac t ionem executed or given and every ass ignment or delivery or sale of goods by such debtor for or on account of or in satisfaction or p a r t satisfaction or as securi ty of or for any an tecedent debt due to any creditor or credi tors such w a r r a n t of a t to rney or cognovit or ass ignment or delivery or sale of goods being wi th in s ixty days pre­ ceding t h e da te of t h e first publ ica t ion of such not ice as aforesaid shal l as aga ins t t h e credi tors hav ing signed such deed as aforesaid or who shal l af terwards sign t h e same be and be adjudged and t aken to be f raudulent a n d void and all such goods as las t aforesaid (or t h e

m a y be recovered accordingly by the t rus tee or t rus tees in such deed named from t h e credi tor or creditors hav ing t aken t h e same for the benefit of all t h e credi tors .

38. A n d be it enacted T h a t after t h e pass ing of th i s Ac t in all cases of var iance between t h e proof and t h e record in any act ion a t law now or hereafter depending in t h e Supreme Cour t it shall be lawful for t h e said Cour t or t he J u d g e before w h o m t h e t r i a l is h a d if such Cour t or J u d g e shal l t h i n k fit ins tead of caus ing t h e record or document on which such t r ia l is proceeding to be amended a t such t r i a l as b y t h e ru les and course of pract ice of t h e said Cour t is now provided in t h a t behalf to direct t h e j u r y or assessors (as t h e case m a y be) to find t he fact or facts according to t h e evidence and the reupon such finding shal l be s tated on t h e said record or document and not­ w i th s t and ing t h e finding on the issue or issues jo ined the said Supreme

var iance was immate r i a l to t he mer i t s of t h e case and such as could no t have prejudiced t h e opposite pa r ty in t he conduct of t h e act ion or defence give j u d g m e n t according to t h e r i g h t and jus t ice of t h e case

and

a n d the same power

a n d t h e power

of caus ing a m e n d m e n t s to be

m a d e

in all such cases of var iance as aforesaid

in t h e m a n n e r prescr ibed

b y

t h e Ac t

in t h a t behalf

m a d e shal l from a n d after t h e pass ing

of

th i s

A c t be vested not only in the Supreme Cour t a n d

t h e

several

J u d g e s

thereof b u t also in t h e several Circui t Cour t s now	or hereafter t o be
ins t i tu ted .

39. A n d be i t enacted

T h a t

after

t he pass ing of t h i s A c t all

act ions of debt for r en t u p o n any inden tu re of demise all act ions of covenant or debt u p o n any bond or o ther specialty a n d all act ions of debt or scire facias u p o n any recognizance a n d all ac t ions of debt upon any award where t h e submission is no t by specialty or for money levied u n d e r any fieri facias and all act ions for penal t ies damages or sums given to t h e p a r t y grieved by any law now or hereafter in force in th i s Colony shal l be commenced and sued wi th in t h e t i m e and l imi ta t ion hereinaf ter expressed b u t not af terwards t h a t is t o say t he said act ions of debt for ren t or covenant or debt upon any bond or o ther specialty and act ions of debt or scire facias upon recognizance wi th in t e n years after t h e pass ing of th is A c t or wi th in t w e n t y years after t he cause of such actions t h e said act ions by t h e pa r ty grieved wi th in one year after t h e pass ing of th i s A c t or w i th in two years after t h e cause of such act ions and t h e said o ther act ions wi th in th ree years after t h e pass ing of th is A c t or wi th in six years after t h e cause of such act ions Provided t h a t n o t h i n g here in conta ined shal l ex tend to any act ions given by a n y

Act or S t a tu t e where t h e t ime for b r i ng ing such act ion	is	or	shal l	be
the reby specially l imited.

40. A n d be it enacted T h a t if any person ent i t led to any

such

act ion or scire facias

shall be at t he t ime t h e cause of act ion

accrued

wi th in t he age of twenty-one years feme covert non compos mentis or beyond sea t h e n such person shall be at l iber ty to commence t h e same act ion w i th in such t imes after be ing of full age discovert of sound memory or r e tu rned from beyond sea as other persons hav ing no such impediment should have done a n d if a n y person aga ins t w h o m the re shal l be any such cause of act ion shall be a t t h e t ime such act ion accrued beyond sea t h e n t h e pa r ty ent i t led to any such cause of act ion shall be a t l iber ty to b r i n g t h e same agains t such person wi th in such t imes as a re before l imi ted after t h e r e t u r n of such person from beyond sea.

4 1 . Provided a lways T h a t if a n y

acknowledgment shal l

have

been m a d e e i ther

by wr i t i ng

signed by t h e p a r t y

liable u n d e r any

such

inden tu re special ty or recognizance or his agen t or by p a r t	paymen t
or satisfaction on account of t h e pr inc ipa l or in te res t due thereon it

shall be lawful for t h e person ent i t led to such actions to b r i ng his act ion for t h e money r ema in ing u n p a i d a n d so acknowledged wi th in

t w e n t y

years

after

such

acknowledgment

on

p a r t

p a y m e n t

or

satisfaction or in case any person ent i t led to such act ion shal l a t	t h e
t ime of such acknowledgment be u n d e r disabili ty as aforesaid or	t h e

p a r t y m a k i n g such

acknowledgment

shall

t h e n

be beyond

sea

t h e n

w i th in t w e n t y years after such disabil i ty shall have ceased or

such

pa r ty shal l have r e tu rned from beyond sea as the case m a y be and in answer to a plea of th i s Ac t t he plaintiff in any such act ion m a y reply such acknowledgment and t h a t such act ion was b r o u g h t wi th in such t ime as aforesaid.

42. A n d be i t enacted Tha t in al l cases where t h e Supreme Cour t or any J u d g e thereof now are or is or hereafter shal l be author ized to direct t he t r ia l of any feigned issue or t h e said Cour t shall in any act ion g r a n t a new t r ia l it shall be lawful for t he said Cour t or J u d g e to impose such condit ions on t h e par t ies respectively and to direct such admissions to be made by t h e m or e i ther of t h e m for t h e purpose of

any such t r ia l or new t r ia l and (in every case of new tr ia l)

to

g r a n t t h e

t he same e i ther general ly or on some pa r t i cu la r po in t or po in ts only as to such Cour t or J u d g e respectively shall seem meet a n d upon any such new t r i a l as aforesaid (if t h e said Cour t or J u d g e shal l t h i n k f i t ) to

m a y be read from t h e J u d g e ' s notes ins tead of any such witnesses be ing aga in examined in open Cour t and u p o n any such feigned issue as aforesaid to pe rmi t bo th or e i ther of t h e par t ies to examine on oa th t h e o ther of t h e m and for t he several purposes aforesaid to m a k e all such orders from t ime to t ime as m a y be necessary.

43 . A n d be i t enacted Tha t after the pass ing of th i s Act all

orders of t he said Cour t a t Common L a w or in i ts Ecclesiast ical Ju r i sd ic ­ t ion whereby any s u m of money or any costs charges or expenses shal l be payable to any person shall have t he effect of j u d g m e n t s a t law and such person shall or lawfully m a y have execut ion the reon for t he monies so payable and the J u d g e s of t he said Cour t may from t i m e to t ime cause wri t s of execut ion to be framed accordingly and to issue as they shall t h i n k fit and all such wr i t s shal l be enforced in t he same