Courts of Requests Act 1842 No 22a (NSW)

No. XV.

An Act to consolidate and amend the Law
relat ing to Courts of Requests and to extend

the Jurisdict ion of such Courts in the County

of Cumberland. [1th September, 1842.]

WH E R E A S second-and th i rd year of t h e re ign of H e r present Majesty

by a n Ac t of t h e I m p e r i a l P a r l i a m e n t passed in t h e

since been cont inued by Ac t s passed for t h a t purpose in t he t h i r d a n d four th and four th a n d fifth years of t h e re ign of H e r present Majes ty and whereas t h e es tab l i shment of Cour t s of Reques t s in var ious p a r t s of

Queen Vic tor ia in t i tu led " An Act to amend an Act of the ninth	year
" of King George the Fourth to provide for the Administration	of
" Justice in Neio South Wales and Van Diemen's Land and for	the

" more effectual Government thereof and for other purposes relating " thereto and to continue the same until the thirty-first day of December " one thousand eight hundred and forty and thenceforward to the end " of the then next Session of Parliament" i t was amongs t o the r t h ings enacted t h a t i t should be lawful for t h e local Legis la tures of t h e said respective Colonies by any laws or ordinances to be by t h e m or e i ther of t h e m from t i m e to t i m e for t h a t purpose made in t h e m a n n e r

prescr ibed by t h e said reci ted A c t and subject t o t h e condit ions a n d

provisoes t he re in conta ined to m a k e such provis ion as to t h e m m i g h t

seem meet for t h e be t t e r Admin i s t r a t ion of J u s t i c e and for defining

t h e cons t i tu t ion of t h e Cour ts of L a w a n d E q u i t y and of J u r i e s

w i t h i n t h e said Colonies respectively and whereas t he said Ac t h a t h

of the said Colony for t h e recovery of small debts in a s u m m a r y way has been found by experience to be very useful for such purpose and i t is expedient to provide for t h e erection of similar Cour t s in o ther p a r t s of t h e Colony and for an extens ion of t h e Ju r i sd ic t ion of such Cour ts in t h e County of Cumber land in the m a n n e r hereinafter men t ioned Be it therefore enacted by H i s Excel lency t h e Governor of N e w Sou th Wales wi th the advice of the Legislat ive Council thereof T h a t from and after the first day of J a n u a r y one thousand eight h u n d r e d and forty-three Cour ts of Beques t s shall be ho lden in and for such counties or districts or o ther por t ions of th i s Colony and i ts Dependencies and at such places respectively as t h e Governor shall by

P roc lama t ion for t h a t purpose from t ime to t ime appoint .

2. A n d be it enacted Tha t on and from the first day of J a n u a r y one thousand eight h u n d r e d and for ty- three an A c t in t i tu led " An " Act for belter regulating Courts of Requests in the Colony of New South Wales" and also an Ac t in t i tu led " An Act to amend an Act

" intituled ' An Act for belter regulating Courts of Requests in New

"South Wales''" and also an Ac t in t i tu led "An Act to establish

" Courts of Requests at the Towns of Melbourne and Port Macquarie " in the Colony of New South Wales " shall be and t h e same are hereby repealed and all act ions p la in t s and sui ts which shall have been commenced and shall be still pending in t he said Cour ts respec­ tively w h e n th i s A c t shall come in to effect shall be proceeded in hea rd and determined unde r t he provisions hereof.

3. A n d l)e it enacted Tha t every such Cour t shall be holden by a Commissioner appointed by t h e Governor and shal l have a Reg i s t r a r and such other minis ter ia l officers for t he execut ion of t h e j u d g m e n t s orders and process thereof as t h e Governor shall deem necessary which officers shall from t ime to t i m e be appoin ted to and removed from their respective offices in such m a n n e r as t h e Governor shall from t ime to t ime direct.

1. A n d be it enacted Tha t every such Cour t shall have power and au thor i ty to hear and de termine in a s u m m a r y way and according to equi ty and good conscience all act ions whatsoever in t he n a t u r e of act ions for t h e recovery of any debt demand or damage to an a m o u n t no t exceeding ten pounds and all act ions for t he recovery of any debt or demand for work or labor done and all act ions for goods sold and delivered and all act ions for r e n t or use and occupat ion or money h a d and paid on account a n d all act ions u p o n any bill of exchange or

promissory note and all actions for any assessment or award of	a rb i t r a t ion and all act ions of t respass or t rover for t a k i n g goods and
chat te ls to an a m o u n t in any such case no t exceeding ten pounds and to award costs in all such actions either to t h e plaintiff' or defendant Provided however t h a t t he said Cour ts shall not have power to deter­ mine any act ion where the m a t t e r in ques t ion re la tes to t he t i t le to any real p roper ty or (unless by t he consent of t he A t to rney General) to the t ak ing of any du ty to H e r Majesty or any fee of office or to any a n n u a l r en t or other such m a t t e r where r igh ts in future may be bound
or to any general r igh t or du ty or to any ac t ion b r o u g h t to recover
t h e disputed balance of an unset t led account originally exceeding t h e
a m o u n t of jur i sd ic t ion created by th is A c t no r to any debt for any money or t h i n g won or alleged to have been won a t or by means of any horse-race cock-match wager or any k ind of play or to any debt which t he r e h a t h no t been a cont rac t acknowledgment u n d e r t a k i n g or
p romise to pay wi th in th ree years before t h e t a k i n g out of t he sum­
m o n s a l t hough the same respectively shall n o t exceed t h e a m o u n t of
jur i sd ic t ion created by th is Ac t A n d provided also t h a t any period for which the defendant m a y be absent from t h e Colony shall no t be con­ sidered as any por t ion of t ime included in such l imi ta t ion.

4 is—VOL . 2. 5.

5. A n d be it enacted Tha t i t shall be lawful for t he Governor

from t ime to t ime to n o m i n a t e and appoin t Commissioners be ing Bar ­

r is ters of E n g l a n d or I r e l a n d of t h r e e years ' s t and ing to preside in

Cour t s of Beques t s for t h e	County	of Cumber l and in which Cour ts
besides a power and	au tho r i t y to hear and de te rmine in a s u m m a r y	w a y
all act ions as aforesaid actions also to t h e a m o u n t of	t h i r t y	pounds of

t h e n a t u r e author ized by th i s A c t shall be hea rd and de termined

Prov ided always t h a t in all such act ions as aforesaid where t h e a m o u n t sued for exceeds t he s u m of t e n pounds t h e Commissioner shall be assisted by two Assessors to be summoned by the Reg i s t r a r from t ime to t ime for t h a t purpose from amongs t t h e class of special or common j u r o r s res ident wi th in t h e coun ty or distr ict for which his Cour t shall have been appointed to be holden which Assessors shall be sworn to give a t r u e verdict u p o n the m a t t e r or ma t t e r s depending between the par t ies according to t h e evidence which verdict shal l be t h e verdict of t h e Cour t and in case of a difference of opinion be tween the Assessors t h e verdic t of a major i ty consist ing of one Assessor and t h e Commis­ sioner shall be equivalent to t h e verdict of all Provided also t h a t in all cases of such difference of opinion i t shall be lawful for t h e unsuc ­ cessful p a r t y to apply to t h e Commissioner for a new t r ia l w h o shal l

g r an t or refuse t h e same and upon such t e rms as to p a y m e n t of costs

or otherwise as to h i m shall seem mee t Provided fur ther t h a t when­ ever t h e said Commissioner shall see fit if t he cause of act ion is above t en pounds it shall be lawful for h i m to reserve any point or po in ts for t h e decision of one or more of t h e J u d g e s of t he Supreme Cour t and to refer such po in t or points to t h e said J u d g e or J u d g e s in such m a n n e r and on such t e rms as t h e said Commissioner shall deem proper and t h e decision of such J u d g e or J u d g e s shal l be final b ind ing and conclusive as regards t h e m a t t e r of such reference.

6. A n d be i t enacted Tha t t h e Reg i s t r a r s of t he Cour ts of

Reques t s holden in t h e Coun ty of C u m b e r l a n d shal l cause to be summoned one week before t h e first day of each s i t t ing of t he said Cour t s th ree persons to a t t end at t h e t ime and place of ho ld ing each

s i t t ing and every such s u m m o n s shal l be in t he form of t h e rules of

prac t ice a n d proceeding framed unde r th i s Ac t and shall be served personal ly on each person or by leaving i t a t his dwell ing-house Provided the s u m m o n i n g of Assessors to any such Cour t shall be b y

r egu la r ro ta t ion from a list m a d e by t h e Commissioner of such Cour t

for t h a t purpose a n d in case of t h e non-a t t endance of any of t h e m t h e

Commissioner shal l have power to nomina t e Assessors in the i r stead

from t h e bye-s tanders Provided however t h a t only th ree be summoned

for each day of the s i t t ing of t he Cour t who shal l be each ent i t led to such a fee for the i r a t t endance as m a y be fixed by the rules of prac t ice and proceeding as aforesaid Provided also t h a t no Assessors shal l be s u m m o n e d whose residence shal l be a t a grea ter distance t h a n t e n

miles from the place where t h e Cour t shal l be holden A n d provided

fu r ther t h a t t h e Commissioner shall be empowered to impose a fine

n o t exceeding forty shil l ings for t h e non-a t t endance of any pe r son

summoned as aforesaid.

7. A n d whereas par t ies m a y a t present be ar res ted by law on mesne process issuing out of the Supreme Cour t in cases where i t shall appear t h a t they are about to abscond or to leave t he Colony and where t h e sum cla imed exceeds t w e n t y pounds and i t is expedient t h a t th i s jur i sd ic t ion should not be interfered wi th Be i t therefore enacted

That in all such cases as aforesaid n o t h i n g in th i s Ac t shall be con­

s t rued to impai r or affect t he ju r i sd ic t ion of t h e Supreme Cour t or t h e power of any of the J u d g e s thereof respectively to issue any wri t or wr i t s of capias ad respondendum where t he r e shall appear to the i r satisfaction an in ten t ion to abscond or leave t h e Colony b u t it sha l l

be

be lawful for t h e plaintiff in every such case (where a n a r res t of t he defendant shal l have been allowed under such c i rcumstances as afore­ said) to proceed to j u d g m e n t in t he Supreme Cour t and to recover his costs in such action a l t hough t h e s u m sought to be recovered shall be u n d e r t h i r t y pounds any t h i n g in th i s A c t to t he cont ra ry no twi th ­ s tand ing .

8. A n d be i t enacted T h a t i t shall no t be lawful to split or divide any cause of act ion for t h e purpose of b r ing ing t h e same wi th in t h e jur isd ic t ion of any Commissioner and in case it shall appear to t h e said Commissioner in any stage of t he proceedings t h a t any cause of act ion has been so split or divided he shall dismiss t he act ion b r o u g h t t he reupon w i t h costs unless the plaintiff shal l sign a memo­ r a n d u m to be filed wi th t he Reg i s t r a r of t h e Cour t u n d e r t a k i n g to accept such sum. of money as t h e Cour t is by th is Ac t empowered to adjudge in full of t h e whole of his demand in respect of t h e cause of act ion so split or divided and the reupon the plaintiif shall u p o n prov­ ing his case recover to an a m o u n t no t exceeding t h a t which t h e Cour t is by th is Ac t empowered to adjudge and such j u d g m e n t shal l be a full discharge of all demands of such plaintiif agains t t h e defendant or defendants for t h e same cause of act ion in all Cour ts whatsoever .

9. Provided however and be i t enacted Tha t in case t h e defendant or defendants in any action shall appear to have given bills of exchange or promissory notes for t h e p a y m e n t of any debt original ly above the a m o u n t of ju r i sd ic t ion created by th i s Ac t b u t which bills of exchange or promissory notes are separately securi ty for a sum not exceeding t h i r t y pounds or t en pounds as t he case m a y be each bill or no te shall be regarded as forming a dist inct and separate cont rac t and m a y be sued upon and recovered in t h e same way as any other debt recoverable under, th i s Act .

10. A n d be i t enacted Tha t the said Cour ts of Reques t s shall

be Cour ts of Record for t h e purpose of t h e j u d g m e n t s of any of t h e said Cour t s be ing set u p as a defence in any action in t h e Supreme Cour t of N e w South Wales or of t he Dis t r ic t of P o r t Phi l l ip or any Circui t Cour t and i t shall no t be incumbent on t he pa r ty to plead such j u d g m e n t specially b u t it shall be lawful for h im to plead the general

issue and give t he j u d g m e n t in evidence	as	special	m a t t e r	Provided
however t h a t	t he en t ry of	the j u d g m e n t	on the Commissioner 's	Cause

L is t shall be deemed and held to be a record of such j u d g m e n t .

1 1 . A n d be it enacted Tha t from and after t h e commencement

of th i s Ac t if any act ion shall be b rough t e i ther in t h e Supreme Court

of N e w Sou th W a l e s or for t h e Dis t r ic t of P o r t Phi l l ip or any

Circui t Cour t in t h e Colony for any cause for which an act ion m i g h t

have been b r o u g h t in pu r suance of th is A c t before any Cour t	of
Reques t s and the plaintiif i n such act ion shall recover n o more	t h a n

t h e a m o u n t which m i g h t have been recovered in any of t h e Courts of Reques t s established under this A c t t h e n a n d in such case the plaintiif shal l have j u d g m e n t only for t he sum so recovered in such act ion w i t h o u t any costs whatsoever unless the J u d g e before w h o m the same shal l be t r ied shall certify t h a t t he cause of act ion was not wi th in t h e

ju r i sd ic t ion created by th i s Ac t .

12. A n d be i t enacted Tha t in every case where any wages or

any o the r s u m or sums of money whatsoever n o t exceeding the sum

of t h i r t y pounds or t en po imds as t h e case m a y be respectively recoverable u n d e r th i s Ac t shal l be due a n d owing to any clerk book­ keeper j o u r n e y m a n shopman shopwoman laborer menia l servant or a n y o ther person whomsoever unde r t h e age of twenty-one years i t shal l and may be lawful to and for such clerk bookkeeper j ou rneyman shopman shopwoman laborer menial servant or o ther person to sue

for

for and recover such debt in t he said Cour t in t he same m a n n e r as if

he or she were of full age.

13 . A n d be i t enacted Tha t n o person shall be exempt from

t h e jur isdic t ion of t h e said Cour t b y reason of his be ing a sworn a t to rney or solicitor or other officer of t h e Supreme Cour t of N e w South "Wales or any o ther Cour t whatsoever b u t t h a t all such a t tornies or solicitors and o ther officers shal l be subject to t h e several processes orders j u d g m e n t s and execut ions of t he said Cour t in t he same m a n n e r as any other person or persons is or a re subject to t he same.

14. A n d be i t enacted T h a t every act ion to be b r o u g h t in any

Cour t of Reques t s shal l be commenced by a demand or p la in t i n wr i t i ng in which demand t h e plaintiff shall shor t ly and in subs tance set for th his cause of act ion whe ther for debt or damages and shal l also s ta te t he place of abode of himself or of his a t to rney if he sue by one and the place of abode of t he defendant a n d shal l cause such demand or p la in t to be filed w i t h t h e Reg i s t r a r of t h e said Cour t a t

such t imes before t h e s i t t ing of the Cour t a t wh ich t h e cause is to be

t r i ed and shal l be prescr ibed by the rules f ramed u n d e r t h i s Ac t and

such Reg i s t r a r shall lodge the same in a copy of t h e s u m m o n s to be re ta ined in Cour t t h e or iginal or dupl ica te of which shall be served on t h e defendant and which summons shall be in t he form set forth i n t h e rules of pract ice and proceeding aforesaid or as near the re to as t h e n a t u r e of the case wil l admi t a lways preserv ing t h e substance of

t h e same.

15. A n d be i t enacted T h a t t he s u m m o n s hereinbefore directed

to be served on t h e defendant m a y be served ei ther by del ivering such summons to t he wife or servant of t h e defendant at t he defendant ' s u sua l place of abode or to any person a t such place of abode being or represen t ing himself or herself to be an i n m a t e therea t and in case t h e messenger or bailiff who shall be employed to serve t h e summons shall demand admi t t ance in to t h e house where t he defendant usua l ly resides and such admi t t ance shall be refused i t shall be lawful for h im to p u t such copy in to t h e house or to fix such copy upon t h e door of t h e house and t h e same shall in such case be deemed to be good service

u p o n t h e defendant .

16. A n d be i t enacted T h a t no j u d g m e n t be recorded by t h e

Commissioner in any case unless t h e process in such cause shall by t h e affidavit of a t least one credible witness before t he Commissioner of one of t h e Cour ts of Reques t s or a Commissioner of t h e Supreme Cour t or before a Magis t r a t e of t he Terr i tory be deposed to have been

duly served upon the defendant in t he m a n n e r hereinbefore directed.

17. A n d be it enac ted Tha t in all ac t ions or sui ts which shal l

be b rough t in any Cour t of Reques t s established under th i s Ac t for any cause ar is ing after t h e pass ing thereof shall be b r o u g h t in t h e Cour t which shal l be ho lden in and for t he distr ict where t h e defendant in such act ion shal l usua l ly reside unless the re shall be two or more jo in t defendants in which case t h e plaintiff m a y proceed in such m a n n e r as is hereinaf ter directed Provided however t h a t in case t h e defendant or defendants in any act ion shal l have given a n engagement or promise in wr i t ing to pay any debt or sum demanded in a pa r t i cu la r place the re in specified it shal l be lawful for t h e plaintiff to cause t he defendant or defendants to be summoned to a t t end t h e Cour t which shal l bo holden in and for t he district so specified in such emgagemen t or promise to pay Provided also t h a t if any p a r t y after hav ing in one distr ict contracted a debt or become liable for any damage recoverable in t h e Cour t s of Reques t s established u n d e r th i s Ac t shall become res ident in ano ther previous to t h e issuing of a summons for t he recovery of such debt demand or damage it shal l and m a y be lawful for t h e plaintiff to s u m m o n t h e defendant to t h e Cour t holden for t h e dis t r ic t

i n

in which such debt was contrac ted or l iabil i ty for damage incur red original ly in t h e same m a n n e r as if he had cont inued a res ident of such distr ict A n d provided fur ther t h a t in case t h e plaintiff shal l be a resident of one district and t h e cause of act ion shall have occurred the re in and t h e defendant be t h e resident of ano ther a n d such plain­ tiff shall on due proof of demand a n d refusal t o pay establish his c la im to t h e satisfaction of t he Cour t i n which t he defendant shal l reside he m a y a t t h e discretion of t h e Cour t be allowed double t h e a m o u n t of costs and expenses incur red in the prosecut ion of his claim.

18 . A n d be it enacted Tha t where in case of persons jo in t ly l iable all t h e persons so liable shall no t reside wi th in t he jur isd ic t ion of t h e same Commissioner i t shal l be lawful for t h e plaintiff or plain­ tiffs to b r ing his or the i r act ion before any Commissioner wi th in whose jur i sd ic t ion any of the persons so jo in t ly liable shall reside by serving such last ment ioned person or persons wi th a summons in t h e m a n n e r hereinbefore directed and such last ment ioned person or persons m a y serve t he other person or persons so jo int ly l iable wi th a not ice of such s u m m o n s in order t ha t he or they m a y appear and jo in in defending such action a n d in case such o ther person or persons shal l no t appear a n d jo in in defending such action t he act ion m a y proceed and j u d g m e n t be obtained and execut ion issued against t h e person or

persons who shal l have been served wi th t h e plaintiff 's s u m m o n s

n o t w i t h s t a n d i n g t he others jo in t ly liable m a y not have been served wi th such summonses or jo ined in such act ion and no plea in aba te­ m e n t shall be allowed for or advantage t a k e n of t he non-joinder of t h e person or persons so jo in t ly liable Provided always and the re is hereby reserved to t h e person against w h o m execut ion m a y have been issued any r igh t which he may have to demand cont r ibut ion from t h e other person or persons jo int ly liable wi th h i m and in case he shall have caused such o ther person or persons to be personal ly served wi th a copy of t h e plaintiff 's summons upon h i m i n such act ion th ree days before t he day appointed for appear ing and answer ing to t h e same the j u d g m e n t or copy thereof certified by t h e Reg i s t r a r recovered agains t h i m in such action shall be admissible in evidence in any act ion for con t r ibu t ion afterwards b r o u g h t by h i m agains t t h e person or persons so personal ly served by h i m as aforesaid for t he purpose of p rov ing the i r l iabil i ty to such cont r ibut ion b u t in case he shall no t have caused such o ther person or persons to be personal ly served as aforesaid t h e n t h e l iabil i ty of such person, or persons to cont r ibut ion shall be proved

in t h e o rd inary m a n n e r Provided also t h a t as often as any question

or d ispute shall arise as to t he district i n which t h e defendant shall be
deemed to be a resident t he same shall be determined by t h e Com­
missioner of t h e Cour t as incident to t h e cause.

19. A n d for t he be t te r discovery of t h e t r u t h and t h e more

satisfactorily obta in ing t he ends of such suits be it enac ted Tha t i t shall a n d m a y be lawful for any Commissioner if he shal l in his discretion t h i n k i t necessary and proper so to do to examine t h e plaintiif or plaintiffs defendant or defendants viva voce on the i r several corporal oa ths and in case any person who shal l be examined on oa th or if a Q u a k e r on affirmation by any such Commissioner by v i r tue of th i s A c t shal l commi t wilful and cor rup t per jury or falsely affirm and shal l thereof be duly convicted according to law or shall commit wilful a n d c o r r u p t per jury in false swear ing or affirming in any affidavit or affirmation by th is Ac t required to be m a d e before any Commissioner or Mag i s t r a t e a n d be thereof convicted according to law every such person or persons shall incur and suffer t h e l ike pa ins and penal t ies as any other person or persons convicted of wilful and cor rupt per jury and in each and every such case i t shall and may be lawful for t h e Com­ missioner to commi t t h e pa r ty and to direct prosecut ion for perjury to

be

be for thwith ins t i tu ted aga ins t any person so falsely swearing or affirm­ ing as aforesaid in order t h a t he or she may be prosecuted for t h e same according to law Provided t h a t no plaintiff or defendant shal l be ex­ amined as aforesaid if o ther conclusive evidence can be obtained.

20. A n d be i t fur ther enacted T h a t all persons summoned as

witnesses to a t t e n d any of t h e said Cour t s shal l a t t end p u r s u a n t t o such summons and shal l be subject to t h e l ike act ions for disobeying such summons as they would be subject to for disobedience to a subpoena i ssu ing out of t he Supreme Cour t and t h a t i t shall and m a y be lawful for any Commissioner to pun i sh as for contempt in a s u m m a r y way by fine no t exceeding forty shil l ings or by impr i sonmen t for any t ime n o t exceeding a for tn ight any plaintiff defendant or wi tness neglec t ing t o a t t e n d wi thou t sufficient cause or refusing to be sworn or t o answer any lawful quest ion or any other person or persons gui l ty of contempt before any such Cour t .

2 1 . A n d be i t enacted Tha t in any case where t h e Commissioner

of any of t he said Cour t s shal l m a k e any order or decision for	t h e
paymen t of money it shall and m a y be lawful for t h e Reg i s t r a r of	t h e
said Cour t on t h e appl icat ion of t he pa r ty in whose favour such	order

or decision has been m a d e to issue a decree or p recep t in t h e n a t u r e

of a fieri facias or a capias ad satisfaciendum which precept shal l be directed to any bailiff of t h e said Cour ts or his deputies who are hereby author ized and empowered to execute t h e same in any p a r t of t h e said Colony in t h e same m a n n e r in all respects as process of a s imilar n a t u r e issuing out of t h e Supreme Cour t m a y be executed b y t h e Sheriff or D e p u t y Sheriff Provided however t h a t no rea l or leasehold p roper ty be l iable to be levied u p o n under wr i t s of execut ion

out of t h e aforesaid Cour t s .

22. A n d be i t enacted Tha t wr i t s of execution whe the r against t h e body or t h e effects of t he defendant as t h e case m a y be shal l be in t h e form set forth in t h e ru les of pract ice as aforesaid or as nea r the re to as t h e n a t u r e of t h e case will permi t a lways preserv ing t h e subs tance of t h e same.

23. A n d be i t enacted T h a t if t h e person summoned to appear on any answer compla in t or demand shall appear according to t h e said summons and t h e p a r t y compla in ing shall m a k e default t h e Cour t shall adjudge the said p la in t t o be disproved or if h e appear and t h e j u d g m e n t of t he Cour t be for t h e defendant t h e said Cour t shal l a t i t s discret ion in e i ther case adjudge to t h e said defendant his reason­ able costs in l ike m a n n e r as for t h e p a r t y compla in ing and t h e said	defendant shal l be ent i t led to t h e l ike process of execut ion for t h e
same as t h e plaintiff would be ent i t led to if he had established his
c la im against t he defendant.

24. A n d be i t eaacted T h a t t h e Reg i s t r a r of any of t h e said

Cour t s shall g r a n t a special wr i t of execut ion when demanded b y t h e plaintiff in any suit where in such wr i t m a y be issued a t t h e peri l of t h e plaintiff and such Reg i s t r a r shall appoin t one or more special bailiffs t o be named by t h e plaintiff to execute such wr i t and such plaintiff shal l give to t he Reg i s t r a r of t h e Cour t from which t h e wr i t issues a bond of indemni ty (for which bond h e shall pay to t he Regis­ t r a r for h is own use a fee of two shil l ings a n d sixpence) as a full a n d sufficient securi ty to t h e defendant agains t any improper use of such wr i t of execut ion whereupon t h e plaintiff or defendant may as t he case m a y be ma in t a in any act ion aga ins t t h e p a r t y or par t ies only g iv ing such bond for any w r o n g or damage done in t h e execution thereof.

25. A n d whereas persons res id ing in and contract ing debts

wi th in t h e l imi ts of one of t he said Cour t s to avoid execut ion u p o n

j u d g m e n t s recovered agains t t h e m do remove in to t h e l imits of ano the r of t h e said Cour ts whereby plaintiffs a re prevented from recover ing

the i r

the i r debts b y reason of t h e defendant not be ing res ident w i th in

t he jur isd ic t ion in which such j u d g m e n t s have been obtained Be i t therefore enacted Tha t any defendant removing from one of t h e said ju r i sd ic t ions in to ano ther shall no t p reven t any plaintiff p roceeding agains t such defendant in t h e jur isdic t ion where such defendant m a y h a p p e n to be resident a t t he t ime of issuing execut ion and it shall be lawful for t he bailiff or his deputy of any Cour t to t ake such defendant in to cus tody or to dispose of his goods in l ike m a n n e r as if he had been a res ident of t he distr ict in whicli j u d g m e n t was recovered against h im.

2G. A n d be i t enacted Tha t if previous to t h e sale of any pro­ p e r t y levied upon such proper ty be ing in t he ac tua l or	ostensible
possession of t h e defendant a d isputed claim shall be m a d e to it	and

such claim be deposed to before a Commissioner or Magi s t r a t e and i n such deposition it be averred t h a t t h e defendant in whose ac tua l or ostensible possession t h e p roper ty so levied upon be found is not the t r u e owner b u t t h e bail lee thereof such proper ty shall be released from execut ion and t h e cost of t he levy if any shall be ei ther added to t h e amoun t of t he costs charged in t he execut ion or defrayed by the plaintiff as t h e Commissioner shall in his discretion direct Provided however t h a t no absolute or condi t ional bil l of sale or mor tgage of cha t te l p roper ty whatever shall pro tec t such proper ty so levied upon from sale unless such bil l of sale or deed of mor tgage as t h e case m a y be be produced to the bailiff A n d provided also t h a t i t shall have been executed at least ten days before t h e summons shall have been served upon the defendant in t he case in which t h e wr i t of execut ion issued and unless the re be expressed in any such i n s t r u m e n t m a d e by

way of mor tgage a cer ta in t ime for t he paymen t of t h e pr inc ipa l sum

for which such i n s t r u m e n t was given as securi ty and such t ime does

n o t exceed one year from the date of t h e i n s t r u m e n t itself and a t the expi ra t ion of t h a t t ime the holder of such bil l of sale or mor tgagee of cha t t e l p roper ty shall no t renew it b u t ei ther assume possession or proceed to the sale of t h e p roper ty so secured or re l inquish all claim to t h e pro tec t ion of i t from t h e debts of other credi tors Provided fur ther t h a t protect ion from sale unde r any c i rcumstances shal l only ex tend to such art icles of chat te l p roper ty as are specifically set for th a n d enumera t ed in a schedule to be annexed to such bil l of sale or deed of mor tgage as t he case m a y be.

27. A n d be i t enacted T h a t all executors adminis t ra tors and

executors de son tort shall be liable to sue and to be sued in t h e said

Cour ts and t h a t j u d g m e n t s which have been obta ined by plaintiffs b u t

n o t satisfied previous to the i r decease as well as all causes of act ion shall survive to the i r executors adminis t ra tors or o ther proper repre­ senta t ive as t h e case m a y be who m a y sue out execut ion in his or the i r names in t he same way t h a t t h e plaintiffs themselves if l iv ing m i g h t have done.

28. A n d be i t enacted Tha t no person who shall be commit ted to gaol or pr ison by order of t h e said Cour t of Beques t s shall be kept or cont inued in custody on any pre tence whatsoever except in t h e case hereinafter otherwise provided for for any la rger space or sjiaces of t i m e from the t ime of his or her or the i r commi tmen t to prison t h a n one m o n t h Provided however t h a t in order t h e more effectually to p reven t persons summoned for debts or demands to t h e said Cour t from f raudulent ly concealing the i r money goods or effects t h a t in case u p o n t h e s u m m o n s of any persons for any debt or demand before t h e said Cour t informat ion of such f raudulent concealment shall be given such Cour t shall have power to hear evidence as to t he fact a n d in case i t shall be proved to the i r satisfaction u p o n t h e oa th of one or more witness or witnesses t hen and in every such case i t shal l be

lawful

lawful for the said Cour t to ex tend the aforesaid t ime of impr i sonmen t of such debtor or defendant to any per iod in addi t ion there to n o t

exceeding six m o n t h s .

29. Prov ided always never theless a n d be i t enacted Tha t every person w h o shall be t a k e n in execut ion unde r or by v i r tue of a n y process i ssuing from or out of t h e said Cour t a n d who at t he t ime of be ing t a k e n in to custody or du r ing his impr i sonmen t shall have more t h a n one j u d g m e n t recorded or wr i t of execut ion against h i m in t h e said Cour t obtained at t h e suit of a different bond fide creditor from the credi tor hav ing defendant unde r previous execut ion and no t obtained on any bill of exchange or promissory no te on which the n a m e of any previous j u d g m e n t creditor shall appear shall be impr i ­ soned t h e l imi ted t ime for t h e first execut ion and afterwards for a n d in respect of each other execut ion t h a t is to say after t h e l imited t ime is expired on t h e first execut ion t he impr i sonment shall commence on t h e second execut ion aud cont inue t he l imi ted t i m e and so on u n t i l he shal l have been imprisoned the l imi ted t ime for t h e first execut ion a n d afterwards t he l imi ted t ime for a n d in respect of each o ther separa te execut ion to be issued agains t h i m in t h e said Cour t previously to his be ing t a k e n in to custody or du r ing his impr i sonment any law s t a tu t e or usage to t h e con t ra ry no tw i th s t and ing Provided a lways t h a t t h e t e r m of impr i sonment on all such execut ions shall not in t he

whole exceed the space of t h ree m o n t h s .

30. Provided also and be i t enacted T h a t if in any case t h e defendant shall be discharged from gaol wi thou t satisfying t h e j u d g ­ m e n t of t he Cour t it shall be lawful for t h e compla inan t a t any fur ther t ime wi th in th ree years after such j u d g m e n t to t ake out execut ion

aga ins t any estates or effects of such	defendant	u n t i l	such	j u d g m e n t
shal l be fully satisfied.

3 1 . A n d be i t enac ted T h a t it shall and may be lawful for t he

Commissioners of t h e said Cour ts of Beques t s wherever i t sha l l

appear to any of t h e m t h a t t h e levy of t h e full a m o u n t of any j u d g ­

m e n t in t h e said Cour t s a t one t ime m a y be a t tended w i t h g rea t distress to t h e defendant and t h a t such distress m a y be avoided or lessened by en la rg ing t h e t ime for satisfying such j u d g m e n t to order

a n d direct t he a m o u n t thereof toge ther w i th t he costs a n d charges

to be levied by ins ta lments a t such s ta ted t imes and in such propor­ t iona l a m o u n t s as shal l be expressed in any such order and as h e shall deem to be reasonable and j u s t Provided a lways t h a t t he t ime for

satisfying any such j u d g m e n t shall no t exceed six m o n t h s from t h e

t ime of m a k i n g such order as aforesaid and in case such defendant	shal l fail to pay any such ins ta lment agreeably to such order t h e
plaintiff m a y proceed to t ake out execut ion for t h e a m o u n t of such
j u d g m e n t and t h e costs and charges thereof t h e n r ema in ing due a n d
unsatisfied in l ike m a n n e r as if n o such order as aforesaid h a d been m a d e and in case t h e plaintiff shal l t ake out execut ion after due tender of p a y m e n t has been m a d e to h i m according to t h e t i m e s ta ted in t h e order of t h e said Commissioner and on satisfactory proof thereof be ing given to t h e Commissioner he shal l e i ther whol ly
forfeit t h e a m o u n t of t he j u d g m e n t or t he res idue thereof as t h e case
m a y be.

32. A n d be it enacted Tha t n o j u d g m e n t of a n y of t he said

Cour t s aga ins t the goods and chat te ls of t h e defendant in any sui t

or act ion b r o u g h t the re in shall be execu ted a t any t ime after sun­ set n o r before sunr ise and if any officer or person shall execute any such j u d g m e n t after sunset or before sunrise such officer or other person shal l be subject and l iable to a fine of t e n pounds which shall be imposed a n d if necessary enforced b y an order of t h e Commissioner for t h e distress and sale of t he offender's goods.

3 3 . A n d be it enacted Tha t no execut ion awarded agains t t h e

goods of any pa r ty or par t ies shall ex tend to or be const rued to ex tend to depr ive any landlord or landlords of t he power vested in such landlord or landlords by an Ac t passed in t he e igh th year of t he re ign of H e r la te Majesty Queen A n n e in t i tu led " An Act for the better security of Rents and to prevent Frauds committed by Tenants" of recover ing one year ' s r e n t by v i r tue and in pu r suance of tin; said Act .

34. A n d be i t enacted Tha t from and after the pass ing of th i s

A c t no p la in t entered in t he said Cour ts as aforesaid nor any order or orders or other proceedings had thereon by v i r tue of th i s A c t shall be removed out of t he said Cour ts by wr i t of recordari facias loquelam

certiorari or otherwise however b u t such order or orders so to be m a d e

by t h e Commissioner shal l be final and conclusive to all i n t en t s and

purposes whatever .

35. A n d be i t enacted Tha t no Commissioner appoin ted unde r th i s Act shall proceed to bear and de termine such causes as aforesaid unt i l he shall have first t a k e n the following oa th before a .Judge or Commissioner of t h e Supreme Cour t which oa th t he J u d g e s and Com­ missioners of t he Supreme Court are hereby respectively empowered

to admin i s te r—

" I (A. B.) do swear t h a t I will execute t h e office of Commis-

" sioner of-the Cour t of Beques t s for the Dis t r ic t of
" di l igently jus t ly and impar t ia l ly and wi thou t favour or
" affection or malice do equal r i gh t to all t h e Queen ' s sub-
" jects t h a t shall come wi th in m y jur isd ic t ion and tha t 1
" will in all t h ings to t h e best of m y skill and power faith-
" fully and dil igently execute t h e du ty imposed on m e by
" an A c t of t he Governor and Legislat ive Counci l passed
" in t h e s ixth year of the re ign of H e r Majesty Queen

" Victoria in t i tu led ' An Act to consolidate and amend the

" ' Law relating to Courts of Requests	and to extend the
" ' Jurisdiction	of such Courts in the County of Cumbcr-

" < laud' So help m e God ." A. B .

30. A n d be it enacted Tha t in all cases where any defendant shall be charged in execut ion by any such Cour t i t shall and may be lawful at any t ime and from t ime to t ime for t h e Commissioner of such Cour t or of any other Cour t of Beques t s in t h e said Colony or i ts Dependencies neares t to t h e place where such defendant

shall be impr isoned or for any Police Mag i s t r a t e or Vis i t ing Jus t i ce

for his suppor t t o order t h e creditor or creditors at whose sui t	of t he gaol in which such defendant shall be confined on appl icat ion by or on behalf of such pr isoner if it shall appear to be necessary
he shall be so imprisoned to pay to h im such weekly sum or sums in such m a n n e r and in such propor t ions as by any of t h e m shall be directed and on failure for one whole week from t h e da te of such order of p a y m e n t thereof as directed such pr isoner shall be for thwi th discharged from custody a t t h e suit of t he credi tor or credi tors so failing Provided however t h a t not ice of such applicat ion in wr i t ing shall be served personal ly on the plaintiff or left a t h i s or h e r usua l abode or shal l be t r ansmi t t ed wi th a pa r t i cu la r and sufficient address to such plaintiff t h r o u g h the Genera l Pos t Office in reasonable t ime to apprise t h e plaintiff of t h e t ime and place where such appl ica t ion shall be in tended to be m a d e and t h a t such not ice be served on t h e defendant in all ins tances a t least two days before such applicat ion shall be enter ta ined.
37. A n d be i t enacted Tha t every Sheriff and keeper of any pr ison or any person whomsoever who shall do any t h i n g in obedience to any legal order of any such Cour t shal l be and they are hereby indemnified for whatsoever shall be done by t h e m respectively in

4 C—VOL . 2. obedience

obedience the re to a n d if any act ion whatsoever shal l be b r o u g h t aga ins t any such Sheriff keeper or person or aga ins t any Commissioner or officer of any such Cour t for per forming any du ty of his office in pur suance of th i s Ac t such Sheriff Commissioner keeper officer or o ther person m a y plead the genera l issue and give th i s A c t a n d t h e special m a t t e r in evidence and if t h e plaintiff be nonsui ted or shall d iscont inue his ac t ion or a verdic t shall pass against h im or j u d g m e n t be had for t h e

defendant u p o n d e m u r r e r such defendant shal l have double costs.

38 . A n d for t h e protec t ion of persons ac t ing in execut ion of

th i s Ac t be i t enacted T h a t al l act ions for any t h i n g done u n d e r th i s

Ac t shall be commenced wi th in six m o n t h s after t h e fact was com­ m i t t e d and t h a t no wr i t shall be sued aga ins t nor process served upon a n y Commissioner Reg i s t r a r Bailiff or o ther officer of any Cour t of

B e q u e s t s for any t h i n g done i n t h e execut ion of or by reason of his

office u n t i l one ca lendar m o n t h n e x t after not ice in wr i t i ng shal l have been delivered to h i m or left a t his u sua l place of abode by the a t torney or agent for t he p a r t y w h o in tends to sue out such wr i t as aforesaid in which not ice shall be clearly and explici t ly conta ined the cause of act ion t h e n a m e and place of abode of t h e person who is to b r i n g such act ion and t h e n a m e and place of abode of t h e a t to rney or agent and t h a t a fee of twen ty shil l ings shall be paid for p repa r ing or serv ing of every such not ice and no more .

39. A n d be it enacted Tha t t h e several fees and sums of money l imited and expressed in t he ru le of pract ice and proceeding framed for t h e dispatch of business in t h e Cour ts of Beques t s and no o ther shal l be t aken by the several officers of t h e said Cour t s the re in ment ioned for the i r several and respective services in execut ion of th i s Act .

40. A n d be it enacted Tha t i t shall a n d m a y be lawful for t h e

Governor of t h e said Colony wi th t h e assistance of t he Commissioner of t he Cour ts of Beques t s for t h e Coun ty of Cumber l and to m a k e such

rules and regu la t ions for t h e pract ice of t h e said Cour ts of	Beques t s
as m a y from t ime to t ime be deemed expedient and necessary.

4 1 . A n d be i t enacted Tha t if any bailiff or depu ty bailiff or

o ther officer of t h e said Cour t employed to execute any process of execut ion shal l b y connivance wilful neglect or omission cause or suffer t h e pa r ty aga ins t w h o m such execut ion shal l be awarded to escape or abscond or t h e goods of such p a r t y to be rescued or carr ied away so t h a t such execut ion shall no t have i ts due effect i t shal l be lawful for any Commissioner upon compla in t and d u e proof thereof m a d e u p o n the oa th or oa ths of one or more credible wi tness or

witnesses to order such bailiff or officer to pay t h e s u m of money for	which such execut ion was awarded or such p a r t thereof as t h e said
Commissioner m a y t h i n k proper to t h e pa r ty complaining and to enforce t h e p a y m e n t thereof by t he same ways and means as are here in provided for t h e recovery of debts .
42 . A n d be i t enacted Tha t no process or proceeding of t h e said Cour ts shall be set aside on account of any technica l e r ror or mi s t ake a n d it sha l l be competen t to every Commissioner to decide a n d de te rmine w h a t is a verbal or technical er ror or mi s t ake in any action or proceeding a n d all errors or mis takes which have not a tendency to mis inform or mislead t h e opposite pa r ty shall in all cases be deemed mere ly verbal or technical .
4 3 . A n d whereas it m a y sometimes happen t h a t such Commis­ sioner m a y by reason of sickness leave or o ther sufficient cause of absence be u n a b l e to a t t end a n d hold t h e said Cour t Be i t therefore enacted T h a t i t shall and may be lawful for t he Governor of t h e said Colony for t h e t i m e be ing to nomina t e a fit and proper subs t i tu te or
locum tenens qualified as aforesaid to do and execute the du ty of such
Commissioner as well in hold ing such Cour t as in all o ther business

which

which such Commissioner is by th i s Ac t au thor ized and empowered to do for such t ime as such illness or leave or other sufficient cause for t he absence of such Commissioner shal l cont inue.

44. A n d be it enacted Tha t if bo th par t ies in any cause shall
agree be tween themselves no t to t ry the i r cause before t he Court of

R e q u e s t s b u t by means of a rb i t ra t ion and shall notify such agreement

by a m e m o r a n d u m in wr i t ing signed by themselves or thei r agents t he

a m o u n t of award declared by such a rb i t ra t ion shall be b ind ing on bo th

par t ies and j u d g m e n t in accordance the rewi th be entered in t he Commiss ioner ' s cause l ist for t h e plaintiff or defendant as t h e case

may be .

45 . A n d bo i t enac ted Tha t no person shall bo pe rmi t t ed to

appear and act in any Cour t of Reques t s in any suit on behalf of any plaintiff or defendant b r o u g h t for any s u m no t exceeding ten pounds unless i t shal l be proved to t h e satisfaction of t h e Commissioner of t h e Cour t t h a t such plaintiff or defendant is p reven ted by some unavoidable necessi ty or some good or sufficient cause from conduct ing his case in person Provided t h a t no costs shall be allowed by the Commissioner in any such case for professional assistance.

46. A n d whereas by reason of t h e extension of t he a m o u n t of jur i sd ic t ion created by th i s Ac t in t h e Coun ty of Cumber l and it is expedient t h a t sui tors should bo ent i t led to t h e aid of t he legal profession Be i t therefore enacted Tha t in all act ions in wh ich the sum sought to be recovered is above t en pounds t he plaintiff and defendant m a y appear and each conduct h is case by himself h is c lerk or servant or employ any person admi t t ed an a t to rney of t h e Supreme Cour t of

N e w South W a l e s or of t h e Dis t r ic t of P o r t Phi l l ip respectively to

pract ise as an advocate and a t to rney before t h e Commissioner P ro ­

vided however t h a t no a t to rney so prac t i s ing shal l demand or t ake more by way of fees for work by h i m done t h a n t h e sums al lowed by the rules framed unde r th i s Ac t A n d provided also t ha t t h e costs of such professional assistance shall be paid by t h e pa r ty in t h e cause by w h o m the Commissioner shall deem it equi table t hey should be paid.

47. A n d be i t enacted Tha t all a t to rneys of the Sup reme Cour t i n t end ing to prac t i se in any of t h e said Cour ts shall m a k e formal appl icat ion to t he Commissioner of t h e Cour t for t h a t purpose and shall bo duly enrolled as p rac t i t ioners the re in before they shall be

admi t t ed to pract ise .

48 . A n d be i t enacted T h a t it shall and m a y be lawful for any

Commissioner if any a t to rney prac t i s ing in causes before h i m shall

appear to h i m e i ther upon such Commissioner ' s own view in open	Cour t or b y examina t ion of o thers upon oa th to have acted in any
such cause cor rup t ly con temptuous ly or in any respect knowing ly and wilfully agains t h is d u t y as an a t to rney to m a k e a n order to r e m a i n
of record wi th t h e Reg i s t r a r of t he Cour t ei ther suspending such
a t to rney from prac t i s ing for a given t ime or p roh ib i t ing such a t to rney for ever from prac t i s ing in such Cour t which order shall be b ind ing Provided never theless t h a t i t shal l be lawful for any a t to rney agains t w h o m such order shall be made to appeal to t h e J u d g e s of t he Supreme Cour t who m a y by examina t ion on oa th examine in to t h e g rounds of such order and reverse va ry or confirm the same as they shall see reason.

No . X V I .