Courts of Requests (1842) (WA)

W ESTERN AUSTRALI A.

ANNO SEXTO

VICTORIIE REGINS

No. XIII.

An Act to establish and regulate Courts

of Requests.

'WHEREAS it is expedient that a Court of Requests for the preamble,

'WHEREAS

of small sums should be established in the Town of Perth, and that due provision be made for the future establishment of similar Courts in other Towns and districts of the Colony thereof, as the increase of population and other circumstances may from time to time require—Be it therefore enacted by His Excellency the

6th Viet. No.. 13. 1842.

Governor of Western Australia, by and with the advice and consent

Governor my establish of the Legislative Council thereof, that Courts of Civil Jurisdiction Courts of Bequests.

to be called Courts of Requests shall be holden at. Perth, and at such other towns and places as the Governor of the said Colony for the

- time being shall or may from time to time appoint by Proclamation;

and the said Courts respectively shall be holden at such times us the

said Governor shall in like manner appoint.

Appointment of Commie-

sionEM II. AND be it enacted, that it shall be lawful for the said Gov-

ernor to appoint, subject to the approval of Her Majesty, Her Heirs, and Successors,- to and for each of the said Courts a Commissiuner to

exercise the jurisdiction thereof, a ho shalt hold his office during the

pleasure of her Majesty, Her Heirs, and Successors, and to suspend

such Commissioner, and to appoint some other person to discharge the duties of the said office until the pleasure of Het' Majesty, Her Heirs, and Successors, be known.

Appointment of other offi-	II I. AND he it enacted, that it shall he lawful for the Commis-	-	•
CCU.

sioner of each of the said Courts of Requests to appoint, sobject to the approval of the said Governor, such ministerial officeis'as he may deem requisite for the due administration of justice therein ; and to remove and replace such ministerial officers, subject to the like approval, as and when such Commissioner may deem requisite.

Jurisdiction of Court,	RUM below 110, not' af-W. AND be it enacted, that every such Court as aforesaid shall
fecting real property, or have jurisdiction to hear and detemine in a summary manner, and future permanent rights. to award costs in all actions, plaints, and suits, for the payment and

recovery of any debts, 01 damages, for breach of contract, not ex-

ceeding Ten Pounds Sterling—Provided that the matter ill question

do not relate to the title of the freehold or leasehold of and in any

lands, tenements, or hereditaments, or of any chattels real whatsoever, or to the taking or demanding of any duty payable to Her Majesty,

Her Heirs or Successors, or to any fee of office, annual rent, or such -other matters where right in future may be bound, or to any general right or duty.

Not to extend to disputed V. AND be it enacted, that nothing in this Act shall give the

balances of largeraccount te

orighwIly exceeding ZlO t said Courts jurisdiction in ease of any debt being the disputed balance

tiger, or prong debt..

ot an unsettled account originally exceeding Ten Pounds; nor ofof

any debt for any money or thing won at, or by means of; any horse

race) cock match wager, or any kind of gaming or play,

1842.                    6th Viet. N©. 13.

VI.     AND be it enacted, that no cause of action for-a sum %ex—target claims not to be

ceeding Teri Pounds shall be split and divided into , grounds dr tWo. :filtturAr Zit-wog:Tr

or 'mote actions, in order to bring the same within the jurisdiction mar in Such case proceed hereby ervated ; and if a plaintiff in any of the said Courts ihan Tor E10, in full discharnof such larger debt.

/lave so split or divided his cause of action, his suit shall be dismissed

. costs, but Without prejudice to his proceedings upon his entire

cause of action in any superior court or otherwise --Provided always,

that a plaintiff may sue in any of the said Courts of Requests for the

-sum of Ten Pounds in full of a larger demand, and in such case the

Commissioner of such Court shall and may, if the plaintiff satis- factorily prove his case, make and pronounce a decree for such plaintiff for any sum not exceeding Ten Pounds, and the same shall

be expressed in such decree to be, and shall be, in full discharge of such larger demand, and shall be a full and complete bar to any

other action, plaint, or suit, in the same or any other Court

VII.     AND be it enacted, that if any action or suit in the Civil Plaintiff proceeding in sn-

Court of the said Colony for any debt, demand, or matter, ter, which in ,P,:,',rti'Lfr,,r,tife"rrAdte,ttlii

claimed, is by virtue of this Act within the jurisdiction of any or dant if successsful entitledto double costs.	the nature thereof, wie•out reference to the sum or value rim-Maas, not nave costs, and defen-
the said Courts of Requests, and recoverable therein, a verdict or
judgment shall be given for the plaintiff or plaintiff's for a smaller
sum than Ten Pounds, and the Commissioner of the said Civil Court
shall certify in the Record book thereof, that such action or suit
ought to have been prosecuted in one of the said Courts of Requests,
then and in such case such plaintiff or plaintiff's shall not by reason of such verdict or judgment have or be allowed any costs whatsoever ; and if the verdict or judgment shall be given fin. the defendant or defendants in any such action or suit, and the Commissioner of the
said Civil Court shall so certify as aforesaid, then such defendant
or defendants shall have double costs, and shall have such remedy
for recovering the same as any defendant has, or shall have, for
recovering ordinary costs in the said Courts of Requests.

VIII.     AND be it enacted, that any person under the age of twenty- Minors may sue for wage*

one years may sue for and recover in any of the said Courts ofnries.	and be sued for nem-
Requests any amount of wages not exceeding ten pounds in the same manner as if he or she were of full age, and may in like manner
be sued therein for the amount of any necessaries not exceeding ten
pounds in value supplied to him or her.

•

hS .AND .be it enacted, that no person shall be exempt from

6th Viet No. 13. 1842.

of officers of superior	NoexemptiOn by privilege the jurisdiction of the said Court of Requests by reason of his being
courts. an Attorney, Or Solicitor, or other Officer Of the said. Civil ,Court or

of any other superior Court.

Limits of jurisdiction

miles. 20 X, AND , be it enacted, that all actions or suits in themaid Courts of Requests shall be brought in the court holden nearest to the usual residence of the intended defendant, or of any one of several joint de- fendants, at the plaintiff's pleasure; and no such defendant shall be summoned to attend any such court holden at a greater distance than twenty miles from his or her usual place of abode, unless there be two or more joint defendants, in which case the plaintiff may sue them in any Court of Requests within the distance of twenty miles of, and being also the nearest to, the usual place of abode of any one of the said joint defendants ; and that as often as any question shall arise respecting any such distance as aforesaid, the saihe shall be determined by the Commissioner as incident to the cause.

Except where promise in

'writing to pay at parti-	XI. PROVIDED always and be it enacted, that in case the in writing to pay the debt or sum demanded at a particular place therein specified, and the same shall be stated in the plaint and in the summons, the plaintiff may cause such defendant or defendants to be summoned to attend the court which shall be holden nearest to the place so specified, notwithstanding such court shall be holden at a greater distance than twenty miles from the usual place of abode of such defendant ; and if the plaintiff in such case shall fail at the trial to prove such engagement or promise, he or she shall be non- suited and shall pay all reasonable costs and expenses incurred thereby by any such defendant, and the same shall be recovered in like manner as other costs taxed and allowed by a Commissioner in any of the said courts.
cular place, plaintiff fail-
ing to prove promise to he	defendant or defendants shall have given an engagement or promise
nonsuited with costs.

On emergency. Agents not allowed unless XII. AND be it enacted, that no person whosoever shall be per-

witted to appear and act in any of the said courts for and on behalf of any plaintiff or defendant, unless it shall be first proved to the satisfaction of the Commissioner of such Court that such plaintiff or defendant is prevented by some unavoidable necessity, or some good and sufficient cause, from attending such court in person.

Pleadings oral, and bills

of particulars in lieu of XIII. AND be it enacted, that the pleadings in all the said

yldnt, atc. . Courts of .Requests shall be ovaLand . that all actions therein shall

1842, 6th Viet. No. 13.

be commenced by delivering in duplicate to the Commissioner thereof, in lieu of a plaint, or declaration, a Bill of Particulars, or a summary in writing of the nature and grounds of the plaintiff's demand ; and if the Commissioner shall deem the same riot sail-

.

ciently particular or precise as to dates, names, sums, or other cir- cumstances, he may at his discretion require the same to be forthwith amended to his satisfaction ; and one of such duplicate bills or summaries shall be filed in the said Court of Record, and the other shall be appended to a summons to appear and plead to be thereupon issued by the Commissioner, calling on defendant to appear in court on a certain day and hour to answer the claim set forth in such appended bill or summary.

XIV. 'AND be it enacted, that if, at the return of any summons to appear and answer a plaintiffs claim in any of the said Courts on default and evident('Court may decide finally

of service of summons

of Requests, the plaintiff shall appear, but the defendant shall not	or may let judgment gowhere debt below 40s.,
appear, and the Commissioner shall be satisfied, by the oath or	by default, and give notice
endorsed return of the Bailiff, of the service of such summons, and	to defendant,
no reason shall he shown to the satisfaction of the Commissioner for such non-appearance, and the plaintiff's claim shall not exceed the sum or value of Forty Shillings, it shall be lawful for such Commis- sioner to hear and receive the plaintiff's evidence, and if he shall be satisfied therewith, to give final judgment for such plaintiff, but if such evidence be not satisfactory to such Commissioner, or if the
•	plaintiff's claim shall in any such case exceed such sum, aril the defendant's non-appeare shall be accounted for to the satisfaction of the Court, in such elk the Commissioner shall take minutes of the plaintiff's evidence, and judgment by default shall pass and be

-.entered for the plaintiff; and notice of such judgment by default shall thereupon be served upon such defendant, warning such defendant that if he or she do not appear in Court at a certain day and hour and open such judgment and answer the plaintiff's claim, such judgment will become final; and' if such defendant shall not appear accordingly, such judgment shall be and become final ; but if such defendant shall appear in pursuance of such notice as last aforesaid, and shall pay the reasonable expenses (to be determined

by the Commissioner) of the plaintiff's second attendance in court,

such defendants shall be admitted to plead and give evidence in defence ; but in such case, the minutes aforesaid of the plaintiff's evidence shall be read and received as and for such evidence itself --Provided always, that if a defendant who shall attend court in pursuance of any such suitice of judgment by default as aforesaid,

6th Viet. No. la	18
1842a
1842a 4

shall make affidavit or swear before the Commissioner that , such

defendant had no knowledge of the summons to appear and plead in time to obey the same, then the expenses of such 8ocopd attendance as aforesaid of the plaintiff shall not be required to be paid by such defendant as the terms of his or her being admitted to plead, but shall abide the issue of such actiom

et'mm"ssncr mar exn- XV. AND be it .enacted ., that it shall be lawful for the dommis‘,mine plaintiff and defen-

oath, ami may adjourn or plaintiffs, defendant or defendants, viva voce, in open court; onbearing. dant and witnesses on stoner of any of the said Courts of Requests to examine the plaintiff

their several corporal oaths, and to administer an oath or oaths to all persons about to give evidence before such Commissioner, and to adjourn the hearing of any cause or matter if the same shall appear to him expedient, to any future day or time.

Commissioner may allowXVi. AND be it enacted, that it shall be lawful for a Commis‘

%eedeng six montlis. that the immediate execution of any order, judgment, or decree of time for payment not ex- . stoner of any of the said Courts of lit quests, if it shall appear to him

his court would occasion ruinous or very great distress to the defendant., and that such distress may be avoided or considerably lessened by granting time to such defendant, to order and direct the ;amount 'of such order, .judgment, or decree, with the costs, to he levied (if necessary) by instalments, at such times and in such amounts as he may deem reasonable and just—Provided alwaysi that such enlarged time for satisfaction do not exceed six calendar months ; and in case such defendantsball fail to pay any onesuch instals merit agreeably to such order, the plaintiff may proceed to take out -execution for the amount of such order, judgment or decree, and costs, then remaining unsatisfied, in like manner as if no such order bad been made.

J./AO/lent to extend to Orders of any of the said Courts of Requests may and shall be carried XVII. AND be it enacted, that the Judgments, Decrees ., and

Tioper y t of defendant in

•

toy pan of the Colony. into execution in any district or place whatsoever within the said

Colony where the goods and chattels of the defendant, or any of the defendants, may be found.

'Courtmay ism execution, Svm. AND be it enacted, that in order to carry into execution

any order or decree of atty of the said Courts of Requests for the

payment of money, it :ii di he lawful for the court making such order or decree, at the prayer of the party prosecuting the same, to

1842.   13th Viet. No. 14.

issue a precept Signed . by the Commissioner, in the natttre of atviat of fieri facias, directed to a Bailiff of any of the said courts, who is hereby authorised and empowered to levy the amount thereof out of the goods and chattels of the defendant=ProVided that such precept may be addressed to one or more special bailiff or bailiffs (who shall in such case have the like powers as an ordinary bailiff of any of the said courts) to be named by such plaintiff, on such plaintiff giving sufficient security against any improper use of such :precept.

XIX.      PROVIDED always, and be it enacted, that no c'xecution Act L . ...,...—nn_,...

the i °filmic of scae8th

issued 'out of any of the said courts shall deprive any landlord of benefit of an Act passed in the eighth year of Her Majesty Queen Ann e.

Anne, entitled "An Act for the better security of rents and to prevent frauds committed by tenants."

XX. AND be it enacted, that as 'Often as any goods and chattels Office) e i f

shall be seized under process of execution of any of the said courts seized, ;‘:e itlitcn uroYticue cis r9eV,

the officer making such seizure shall deliver to the defendant an and may place person in

inventory thereof', with a notice thereunder written and signed by rosus:WITsseteurrx

such officer warning the defendant of such seizure, and that the goods and chattels so seized will be sold at a certain time and place, unless the debt, or damages and costs (stating the amount thereof, and the title of the cause :in which the •same were recovered), be sooner paid or satisfied ; and shall cause a'notice ofsuch sale to be affixed to or on the most public part of the house or place in which such seizure shall be made at least twenty-four hours before the time of sale; and shall, if in 'his 'discretion he 'shall deem it necessary, place. a person or persons in possession of the goods and chattels so seized 'until the time of sale; and shall, unless such debt, or damages and costs, be

sooner paid or satisfied, sell the goods arid chattels so seized by

public auction, to any person or persons other than such officer himself, as 'soon as may be after the expiration Of forty-eight hours Trent. the time Of seizure .; 'and shall, alter deducting all lawful Tees .and charges, pay over on demand to the 'plaintiff or his or her apt. pointee, the amount 'of debt, or damages, and costs so levied and received by 'such officer, and shall pay on demand to the defendant 'or 'Ins appointee the surplus, ifany, of the proceeds of such sale.

lone ,of the said Courts of Requests may be addressed to, and if so s"'''c` of proc6ii4, XXI. AND be it enacted, that all serviceable process of MTV ;,

6th Vice. No. 13. 1842.

addressed, shall be served by any Bailiff or other of ficer of any other of the said Courts of Requests, and the service of all such process shall be effected by delivering a copy thereof; and shewing at the same time the original, to the person intended to be served therewith, or, if he or she be absent from his or herusual place of residence, to any member of his family or household above the age of sixteen Years, with a verbal notification of the purport and object thereof; arid every process requiring the appearance of any person in any of the said courts shall be served at least twenty-four hours before the return thereof, if such person be resident within three miles of the place of session of such court; but if such person be resident at a greater distance than three miles, the Commissioner issuing such process shall and may regulate the interval between the service and return thereof as, according to the circumstances of each case, he may deem fair and reasonable.

Aervice of Nocess on one XXII. AND he it enacted, that service of any process of any of pa Ulla sufacien6 the said Courts of Requests upon any one of several partners, or upon

any one of several persons jointly liable, shall be deemed service upon all such partners or persons—Provided that the Court out of which such process shall have been issued be the Court nearest to the residence of the person served therewith,

'Witnesses disobeying sum-	X XIII. AND be it enacted, that all persons summoned as wit,
mons liable to same pun-

ishments as in Civil Court.	nesses to attend any of the said Courts of Requests shall be subject
Commissioner may One	to the like actions and attachments for disobeying such summons as
or imprison for contempt.	they would be subject to for disobeying a summons out of the said Civil Court of the Colony ; and also that it shall be lawful for any of the said Courts of Requests to punish in a summary way by fine not exceeding Forty Shillings to the use of her Majesty, Her Heirs, and Successors, for the public service of the Colony, or by impri-. sonment (either in the first instance, or on default in payment of any such fine as aforesaid) not exceeding a fortnight, any person op persons guilty of any contempt before such court,
Perjury,	XXIV. AND be it enacted, that if it shall appear to the Com- missioner of any of the said Courts of Requests that any person in any examination, oath or affirmation, or in any affidavit or affirmation had, taken, or made respectively before such Commissioner, has committed wilful and corrupt perjury, it shall be lawful for such Commissioner forthwith to order such person into the custody of

1842.               6th Viet. No. 13.

any officer of the said court, and to require such person to give bail by recognizance with one or more sureties to the satisfaction of such Commissioner for his or her appearance to take his or her trial for such offence ; or in default of bail, to commit such person for trial, and to hind over all necessary parties to prosecute or give evidence against such person ; and in every such case such Commissioner shalt certify in writingto the Crown Solicitorofthesaid Colony, (or in casesuch trial is intended to take place before any competent District Court, then to the proper officer of such last mentioned court) the affidavit or affirmation or material part of the examination or evidence of the person so bailed or committed upon which perjury is intended to be assigned ;, and on any trial for any such perj ury alleged to have been committed in the course of any trial in any of the said Courts of Requests, it shall not be necessary, in order to prove the fact of such last mentioned trial, to produce and give in evidence any Record of such Court of Requests, but the fact of such last mentioned trial may. he proved by any person present thereat.

XXV, AND be it enacted, that no Commissioner, Bailiff or any, other Officer of any of the said Courts of Requests shall be compel-	Officer entitled to fee be.fore compellable to ,aet,
except tn ease of executum.
lable to issue or serve any process, or to do, take, or enter any act, proceeding, matter or thing relating to his offiicial duties under the provisions or this Act (save and except the sale of goods seized inetecution) before or until his lawful fee or fees for or in respect of the same be duly paid,

XXVI.      AND be it enacted, that no plaint, order, judgment, or Jurisdiction Gnat -

decree, or other proceeding shall be removed out of any of the said Courts of Requests by any writ ofiany Superior Court, or otherwise howsoever, but the orders, judgments, and decrees, of every such Court of Requests shall be final and conclusive to all intents and purposes whatsoever.

zhissioner of any of the said Courts of Requests, on complaint to him gee against ha ollicurs. XXVII. AND he it enacted,that it shall be lawful for the Corn- C ourt to determine char-

Made of any extortion, neglect of ditty, or other misconduct on the. part of any Bailiff or other ministerial officers of such court to sum- mon such Bailiff or officer before him to answer such complaint, and to summon and examine upon oath all necessary witnesses touching the matter of such complaint, and to hear and determine the same in a summary manner ; and if such extortion, neglect of dut y. or

6th Viet. No. 13. 184'1

other misconduct, shall be proved to the satisfaction of such Corn- Missioner, it shall be lawful for such Commissioner to fine the offender any sum not exceeding Ten Pounds, and to levy the same, if not paid according to order, by distress and sale of such offender's chattels, or if any such chattels, or a sufficiency thereof, cannot be found, to commit such offender to any common jail to hard labour

• for any term not exceeding three calendar months; and to suspend such offender from hi, said office, and to appoint some fit and proper person to do the duties of such office until the pleasure of His Ex- cellency the Governor concerning the same be notified, and it shall be further lawful for such Commissioner to award any portion not exceeding one moiety of such fine to the party aggrieved by such extortion, neglect, or other misconduct ; and the residue of such fine shall go to Her Majesty, Her Heirs, and Successors, for the public service of the said Colony.

Nn nction Pgainst racer

widnan one month's no-XXVIII. AND be it enacted, that no action or suit shall be

t ice nor after Lender of commenced against any Commissioner or other officer Of any of the Daniell; amends. , said Courts of Requests for anything by him done in the execution

of his office until notice in writing of such intended action or suit shall have been delivered to, or left at the usual place of abode of the intended defendant at least one calendar month before the commencement of such action ; in which notice shall be clearly set forth the cause and grounds of such intended action ; nor shall the plaintiff or plaintiffs recover in any such action if tender of sufficient amends shall have been made to him, her, or them, or to his, her, or their Attorney by or on behalf of the intended defendant or de- fcndauts before such action brought.

Limitation of actions • XXIX. AND be it enacted, that no action or suit shall be opals% othceis, 3 nomdm

commenct d against any person or persons for anything done in pursuance of this Act, after three calendar months next after the cause of action shall have arisen ; and if any such action or suit. shall be brought before the expiration of such month's notice as aforesaid, or after sufficient satisfaction made and tendered as afore- said, or after the time limited as aforesaid tor bringing such action or suit, in every such case the Court or Jury shall find for the defendant or defendants ; and upon such judgment or verdict the defendant shall have his costs, and the same remedies for recovering the same

as any defendant shall have in other eases.

1842.                   6th Viet. No. 13.

XXX.      AND he it enacted, that no Justice of the Peace in and Justices not to determine

tor the said Colony shall take, receive, hear or determine, within 29,1Tat,'.`",,ZIlearn6Abre?„=

the distance of three miles of the place of session of an y of the said ofplaeeofsessionorcourt.

Courts of Requests, any complaint or matter which, but for the provision hereby made, wouht be cognizable by such Justice under and by virtue of an Act of Council passed in the present year of Her Majesty, entitled " An Act to provide a summary remedy in certain cases of Breach of Contract," when and so often as such complaint shall be for the recovery of wages or compensation not exceeding ten pounds.

XXXI.      AND be it enacted, that in every such Court of Requests Register of Courtn4

as aforesaid there shall be kept a book or register, ruled in columns, in which "shall be severally entered the names of the plaintiff or plaintiffs and of the defendant or defendants, the cause or ground of action, the date of summons to appear, the date of trial or hearing, and the judgment, order or decree, the date of issuing process of of execution, if issued, and the result of such execution ; and such entries shall be signed by the Commissioner, and when so signed shall be evidence of the proceedings of such Court in all other Courts whatsoever.

XXXII.       AND be it enacted, that the fees limited and expressed Pe"'

in the table of fees in the schedule to this Act annexed, and no larger fees on any pretence whatsoever, shall be demandable and receivable by the several Commissioners, and other officers re- spectively, of the said Courts of Requests fur and in consideration of the execution of their several and respective duties ; and the said Commissioners are hereby required to hang up or place a copy of such table of fees in fair and legible writing and figures in some conspicuous part of the Court or place where they hold their respective sittings.

XXXIII.       AND be it enacted, that it shall be lawful for the commissioner tme . make

Commissioner of each of the said Courts of Requests from time rbuleesnt.m&e., , t‘? obe npprol

to time to frame rules and orders for regulating the practice or jour	unnot ut al	sti	C
course of proceeding in the Court over which he presides upon all matters or particulars for which express provision is not made by this Act—Provided always that no such rates or orders shall have any force or authority until the same shall have been

6th Viet. No, 13, 1842,

submitted to the Commissoner of the said Civil Court, and shall have been approved of under the hand of such last mentioned Commissioner.

JOHN HUTT,

GOVERROpt

Passed the council

10th Nov., 1842,5

EPWARD C. SOURER,

Actins Clerk of the Council,

1842.   6th Viet. No. 13.

SCHEDULE REFERRED TO BY THE ANNEXED ACT.

TABLE OF FEES.

Under 40s. From 40s. From £5.

to £5. to --CIO.

FEES OF COMMISSIONER. s. d. s. d. £ S. d.

For issuing every summons to ap- 1 and plead 1 1 6 2

Each copy. 6 6 6

For issuing every summons for)

a witness and copy (same as( for summons to appear ands plead..

For every original hearing	9	6	4	5
Every adjourned hearing.	2 6	0	3 6

For every rule, order or notice. 1 1 6 2

Each copy. 6 6 6

Every process of execution	1	2	3
All the necessary entries in a cause.	1	9	3

Every search in the Register	2	6
Inspecting and filing particulars of

— Plaintiff's demand, or of set off. 9 1

Swearing each affidavit	3	6	9
Filing any other document	3	6	9

BAILIFF'S FEES.

For serving a summons to appear

and plead within a town-site, or	1	1 6	1 6
one mile from Court

For every mile beyond.	6	9	1
For serving a summons for a wit- ness,sameaspreceding summons.

6th Viet, No. 13. 1842.

E s. d. £ s. d. s. d.

For serving an order, rule or notice, -Z

same as above summonses. ... 3

Attendance in Court at hearing....	6	1	2
For each witness sworn, including S

plaintiff and 'defendant 9

For receiving money out of Court (otherwise than under execution)

and paying over same .. ' .. ' . ' .- 6 1 2

For every execution. 7 6 10

Printed by authority of the Government, by E. Stirling, Perth.