Arrest on Mesne Process Act 1902 (NSW)

Act No. 24, 1902.

An Act to consolidate the enactments relating to

arrest on mesne process. [31st July, 1902.]

Assembly of New South Wales in Parliament assembled, and by the	BE it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative
authority of the same, as follows :—

PART I.

Preliminary.

1. This Act may bo cited as the " Arrest on Mesne Process Act,

1902," and is divided into Parts, as follows :—

PART I.—Preliminary—ss. 1-3.

PART II.—Arrest and Bail—ss. 4-10.

PART III.—Discharge—ss. 11-14.

PART IV.— Commissioner at Newcastle—ss. 15-35.

2. (1) The Acts mentioned in the Schedule to this Act are to

the extent therein expressed hereby repealed.

(2) All persons appointed under any Act hereby repealed,

and holding office at the time of the passing of this Act, shall remain in office as if this Act had been in force at the time they were appointed and they had been appointed hereunder, and this Act shall apply to them accordingly.

(3) All rules made under the Acts hereby repealed, and in

force at the time of the passing of this Act, shall be deemed to have

been made hereunder.

action. PART

3. In this Act, unless the context or subject-matter otherwise

indicates or requires,—

" Capias " means capias ad respondendum.
" Court " means the Supreme Court.

" Defendant" in Part IV includes a person against whom an

action is about to be brought.

" Judge " means a Judge of the Court.
" Plaintiff" in Part IV includes a person about to commence an

P A E T I I .

Arrest and bail.

4. No person shall he arrested upon mesne process in any civil

action in any court except in the cases and in the manner hereinafter

provided.

5. In any action in the Court in which the defendant, under

the law in force before the passing of the Act third Victoria number
fifteen, would have been liable to arrest, whether upon the order of a

Judge, or without such order, if a Judge is satisfied by affidavit dis­ closing the facts constituting the ground of the plaintiff's claim, or by evidence on oath before such Judge,—

(a) that the plaintiff has prima, facie a good cause of action in respect of his claim against the defendant,

and if such Judge is also satisfied by the affidavit of the plaintiff or

some other person—

(b)	that such cause of action is to the amount of twenty pounds or upwards, or that the plaintiff has sustained damage to that amount; and
(c)	that any defendant is about to remove or is making prepara­ tions to remove out of the jurisdiction of the Court; and
(d)	that such action will be defeated unless such defendant is forthwith apprehended; and
(e)	that the application is made within a reasonable time after the

fact of the defendant's intention so to remove came to the

knowledge of the plaintiff or might have become known to
him by reasonable diligence on his part,

such Judge may by a special order direct that such defendant shall be held to bail for such sum as such Judge thinks fit, not exceeding the amount of the debt or damages.

such order but not afterwards, may sue out one or more writ or writs 6. (1) Thereupon the plaintiff, within the time expressed in

of capias against such defendant.

(2) Every such writ shall be in the form prescribed by the

Judges.
7. (1) The sheriff or other officer to whom any such writ is directed shall, before the return of the said writ but not afterwards, proceed to arrest such defendant thereupon.

(2) Such writ may be lawfully executed upon a Sunday.

8. Such order may be made and the defendant arrested in

pursuance thereof at any time after the commencement of the action
and before final judgment is obtained therein.

9. The defendant when arrested shall remain in custody until

he has given a bail bond to the sheriff or other officer, or has made deposit of the sum endorsed on such writ of capias, together with ten pounds costs.

10. All subsequent proceedings as to putting in and perfecting

special bail shall be subject to the Rules of the Court made for the

practice of the Court in such cases.

PART I I I .

Discharge.

1 1 . Any person arrested upon a writ of capias may apply to a

Judge at any time after such arrest for an order on the plaintiff to show cause why such person should not be discharged out of custody.

12. Any Judge may make absolute or discharge such order,

and may direct the costs of the application to be paid by either party,

and may make such other order therein as be thinks fit.

13 . Upon the application of cither party dissatisfied with any

such order, the Court may discharge or vary the same.

14 . (1) Any person in the custody of any sheriff, gaoler, or

officer under any such writ shall upon the sequestration of his estate

in pursuance of the law in force for the time being relating to bank­ ruptcy, be entitled to his discharge from such custody on the order of the Judge in Bankruptcy, and shall be forthwith discharged from such custody either absolutely or on such conditions as the said Judge may impose.

(2) No such sheriff, gaoler, or officer shall incur any

liability in respect of such discharge to any person for anything done

by him under this section. PART IV.

Commissioner at Newcastle.

1 5 . The Chief Justice may by commission under his hand and the seal of the Court appoint some fit person residing at Newcastle or within five miles thereof to be a commissioner of the Court for the purposes of this Act.

16 . ( 1 ) Such commissioner shall at the instance of any

plaintiff have power to issue writs of summons and of capias in the
Court against any defendant about to depart out of New South Wales from the said port of Newcastle in cases where by law an arrest upon mesne process is allowed in an action under this Act.

(2) Every such writ of capias shall (except where hereby

otherwise provided) have the same force and effect as an ordinary writ of capias issued out of the Court at Sydney directed to the sheriff.

17. ( 1 ) No writ of summons shall be issued under this Part

except to ground a writ of capias to be issued hereunder.

(2) No writ of capias shall be issued under this Part

unless proof by affidavit is first given to the commissioner that the defendant is about to depart out of New South Wales from the said port of Newcastle, and of all such other facts and matters which arc necessary to be given and established to obtain an order from a Judge

for the issue of an ordinary writ of capias out of the Court at Sydney.

1 8 .    ( 1 ) No such writ of capias shall be issued under this Part

unless the plaintiff, shall first give a bond of two sufficient persons (of whom the plaintiff, if of sufficient ability in the opinion of the com­ missioner, may be one) to the satisfaction of the commissioner to the defendant, in a sum of money to be fixed by such commissioner not being less than double the amount for which the defendant is liable to

be arrested or held to bail under such writ, conditioned to be void on

payment to the defendant of all damages costs and charges which may

be adjudged to him in any action by him against the plaintiff and the bailiff to whom such writ of capias is directed or either of them for or by reason of such writ having been issued, or of his being arrested

thereunder, or of any wrong or damage sustained by him on account thereof, or of any wrongful act or omission of such bailiff in or about the execution thereof, or otherwise in relation thereto, and of all costs charges and expenses which upon any application by the defendant to the Court or a Judge for any rule or order to set aside any such writ or to discharge the defendant from custody thereunder or to cancel any

bail bond given thereunder or otherwise in relation to or connected	with such writ or anything done thereunder may be adjudged or
ordered to be paid to the defendant.

(2) Provided always that the amount for which such bond

shall be given shall in no case exceed the sum of four hundred pounds.

(3) The commissioner shall forthwith transmit such bond

to the Prothonotary of the Court, who shall, upon demand, deliver such bond to the defendant or any one applying for the same on his behalf.

19 .    I t shall not be necessary for any order to be made to warrant

the issuing of any writ of capias under this Part; but the commissioner shall by memorandum thereon under his hand certify, on whose

application

application and on what affidavit or affidavits and when it was issued, and the amount for which the defendant is to be arrested or held to

bail thereunder, in the form or to the effect following :—

" This writ was issued this day of 19 under the

provisions of the Arrest on Mesne Process Act, 1902, on the application of the therein named A B [naming the plaintiff],

and upon reading the affidavit of [naming the deponent] sworn

on the day of 19 [describing each affidavit if more than one]. And the defendant C D [naming the

defendant] is to be arrested or held to bail hereunder for or

in the sum of pounds [specifying the amount], E F

[here to be signed by the Commissioner], Commissioner under

the said Act."

2 0 . (1) Every writ of capias issued under this Part shall instead

of being directed to the sheriff be directed to some person to be
specially named by the plaintiff as a bailiff to execute the same.
(2) Such bailiff shall have all the authority thereunder which the sheriff has under an ordinary writ of capias issued out of the Court at Sydney directed to him, save only that such bailiff shall not have power to appoint a deputy to execute the same, but shall
execute it personally with such assistant or assistants (if any) as he
may require in that behalf.

2 1 . (1) No person shall be bound to accept the office of or to

act as a bailiff under any writ issued in pursuance of this Part unless
he consents or agrees so to do.

(2) Every person who consents or agrees so to do shall be

bound to act as such bailiff under the writ directed to him until his

whole duty as such bailiff under such writ is fully performed.

2 2 . Every writ of summons and of capias issued under this

Part shall be 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 endorsements thereon respectively as are required in
respect of ordinary writs of summons and of capias issued out of the
Court at Sydney.
2 3 . I t 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 Part.

2 4 . Every writ of summons issued under this Part shall be the

commencement of an action in the Court by the plaintiff against the

defendant.

2 5 . The commissioner upon issuing any such writ of summons

or capias shall forthwith transmit copies thereof and of every endorse­ ment thereon and the original affidavits upon which any such writ of capias was issued by him to the office of the Prothonotary of the Court

to be there filed and kept. 2 6 .

2 6 .    The commissioner shall he entitled to receive and retain for

his own use for issuing any writ of summons under this Part the sum
of five shillings, and for issuing any writ of capias the sum of one

pound, and to no other fees, payment, or remuneration whatsoever.

27 . 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 Court at Sydney in the ordinary way.

2 8 .    No action shall lie against the commissioner for issuing any

writ of capias under this Part unless the plaintiff in such action shall
allege and prove that the 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.

2 9 . Every bailiff to whom a writ of capias issued under this

Part is directed, and who consents and agrees to act as such bailiff to

execute the same, shall make a due return thereto to the Court in like

manner as the sheriff is bound to make a return to an ordinary writ

of capias issued out of the 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 issued out of the Court at Sydney and directed to him.

3 0 . (1) The bailiff, acting under any writ of capias issued under this Part shall have authority and shall be bound to take bail by bond of the defendant and sureties to himself for the appearance and rendering 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 issued out of
the Court at Sydney directed to himself.

(2) Such bailiff upon such bail bond being entered into and given to him shall release the defendant from his custody under such writ.

(3) 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.

3 1 . (1) The bailiff acting under any writ of capias issued

under this Part shall be bound to receive from the defendant as a

deposit

deposit in lieu of bail the amount for which he is to be arrested or held to bail thereunder and the sum of ten pounds for costs in like manner as the sheriff is bound to do under an ordinary writ of capias issued out of the Court at Sydney directed to and executed by him.

(2) Upon receipt of such deposit such bailiff shall release the defendant from his custody under such writ, and shall forthwith pay or cause to be paid over to the Prothonotary of the Court the money so deposited by such defendant as aforesaid, to be held and disposed of by such Prothonotary according to law.
3 2 . Every bailiff serving any writ of summons or executing

any writ of capias issued under this Part shall be entitled to the same

fees, mileage, and other remuneration for everything done by him as

such bailiff under the provisions of this Act as the sheriff and his

bailiff are, or is, or may be entitled to for the same or similar acts done;

by them or either of them in serving or executing or otherwise in relation to any ordinary writ of summons or of capias issued out of the Court at Sydney or taking bail thereunder, and to no other payment or remuneration whatever.

3 3 . Every plaintiff obtaining any such writ of capias under this Part, and the bailiff to whom the same is directed, shall be jointly and severally liable to the defendant for any wrongful act or omission by such bailiff in or about the execution of such writ or incident thereto.

3 4 . All proceedings in any action commenced by any writ of

summons and under any writ of capias issued under the provisions of this Part shall (except as herein otherwise directed) be taken and had in like manner as if such action had been commenced by ordinary writ of summons issued out of the Court at Sydney, and the Court and any Judge thereof shall have all such and the same powers to set aside any writ of summons or capias issued under the provisions

hereof or the service of any writ of summons, or to discharge from

custody any defendant arrested under any such writ of capias, and to
order any bail bond given thereunder to be cancelled, and in every

other respect as such Court or Judge has or may have in case of ordinary writs of summons or capias issued out of the Court at Sydney.

3 5 .    The Judges, or any two of them, may make all such rules as

they think necessary or proper for carrying this Part of this Act into

execution.

SCHEDULE.

SCHEDULE.

Reference to Act. Title. Extent of repeal.

9 Geo. IV No. 2 An Act for adopting a certain Act of Parlia­ ment passed in the seventh and eighth years of His Majesty King George the Fourth to regulate the practice of arrests. The whole.

3 Vic. No. 1 5 . . . An Act for abolishing arrest on mesne process The whole.

in civil actions except in certain cases in New

South Wales and the dependencies thereof.

1 3 Vic. No. 1 2 . . . An Act to prevent the escape from the Colony of The unrepealed

fraudulent debtors. portion.

2 4 Vic. No. 14 . . . An Act to authorise the appointment of a com­ The whole.

missioner to issue writs of summons and

arrest at the port of Newcastle.

3 7 Vic. No. 11 . . . An Act to amend the law of arrest and imprison­ The unrepealed

ment on civil process. portion except
section G.