Arrest on Mesne Process Abolition Act 1839 No 16a (NSW)

No. XV.

An Act for abolishing Arrest on Mesne Process
in Civil Actions except in certain cases in

2. A n d be it enacted Tha t if a plaintiff in any action in which t h e defendant is now liable to ar res t whe ther upon the order of a J u d g e or w i thou t such order shall by t he affidavit of himself or some other person or persons shew to t h e satisfaction of a J u d g e of the Supreme Cour t t h a t such plaintiff has a cause of act ion against t he

New South Wales and the Dependencies

thereof. [3rd October, 1839.]

WH E R E A S the present is unnecessar i ly extensive and severe and ought to he re laxed Be it

power of Ar res t u p o n Mesne Process

wi th in t he Colony of N e w South Wales and its Dependencies

therefore enacted by H i s Excel lency the Governor w i th the advice of t h e Legislat ive Council Tha t from and after t he t i m e appointed for the commencemen t of th is Act no person shall be arres ted u p o n mesne; process in any civil act ion in any Court wi th in t h e said Colony or the Dependencies thereof except in the cases and in t he m a n n e r herein­ after provided.

t he defendant or defendants to t he a m o u n t of twen ty pounds or upwards or has sus ta ined damage to t h a t a m o u n t and tha t t h e defendant or any one or more of t h e defendants is abou t to remove or is m a k i n g prepara t ions to remove ou t of t h e jur isdic t ion of t he Sup reme

Cour t of N e w Sou th W a l e s or o therwise to abscond to r emote p a r t s

w i th in t h e said Colony (by which is in tended pa r t s beyond the l imi ts

which now are or hereafter m a y be prescr ibed for locat ion wi th in t h e same) and t h a t such act ion will be defeated unless he she or they be for thwith apprehended i t shall be lawful for such J u d g e by a special order to direct t h a t such defendant or defendants so about to remove or abscond shall be held to bail for such sum as such J u d g e shall t h i n k fit no t exceeding t h e a m o u n t of t he debt or damages and the re ­ u p o n it shal l be lawful for such plaintiff w i th in t he t ime which shal l he expressed in such order bu t no t af terwards to sue out one or more wr i t or wr i t s of capias agains t any such defendant or defendants so directed to be held to bail wh ich wr i t of capias shall he in t he form t o

be prescribed by t h e J u d g e s of t h e Supreme Cour t .

3 . A n d be i t enacted T h a t t h e Sheriff or other officer t o w h o m

any such wri t of capias shall be directed shal l before t h e r e t u r n of t h e said wr i t b u t no t af terwards proceed to ar res t t he defendant t he reupon and such defendant when so arres ted shall r emain in cus tody un t i l h e shall have given a hai l bond to t h e Sheriff or o ther officer or shal l have m a d e deposit of t he s u m endorsed on such wri t of capias t oge the r w i t h t en pounds costs a n d all subsequent proceedings as to p u t t i n g in

and perfect ing special bail shal l be subject t o t he rules m a d e or here­

after to he made by the J u d g e s of t h e said Cour t for t h e prac t ice of

t h e Cour t in such cases.

4     A n d he i t enacted Tha t any such special order m a y he m a d e

a n d t h e defendant arres ted in p u r s u a n c e thereof a t any t i m e after t h e commencement of such act ion and before final j u d g m e n t shall have

been obtained the re in .

5. A n d be it enacted T h a t i t shall he lawful for any person ar res ted u p o n any such wri t of capias to apply a t any t ime after such arrest to a J n d g e of t he Supreme Cour t for an order or ru le on t h e plaintiff in such action to shew cause w h y the person ar res ted should n o t be discharged out of custody and t h a t i t shal l be lawful for such

J u d g e to m a k e absolute or discharge such order or ru le and to	direct
t h e costs of t he appl icat ion to be paid by e i ther pa r ty or t o m a k e	such

other order there in as to such J u d g e shal l seem fit Provided tha t any such order made by a J u d g e m a y be discharged or var ied by the Cour t on appl icat ion m a d e the re to by ei ther p a r t y dissatisfied w i t h such

order.

G. A n d be i t enacted Tha t every pr isoner who at t h e t i m e

appointed for the commencement of t h i s Ac t shall be in custody on mesne process for any debt or demand shall be ent i t led to his d ischarge upon en te r ing a common appearance to t h e act ion Provided never­ theless t h a t every such pr isoner shal l be l iable to be detained or after such discharge to be again arrested by v i r tue of any such special order as aforesaid a t t h e suit of t h e plaintiff a t whose sui t he was previously arrested or of any other plaintiff.

7. A n d be it enacted That th i s A c t shal l commence a n d t a k e

effect from a n d after t he pass ing and publ ica t ion thereof.

No . X V I .