Debtors, absconding (1856) (WA)
WESTER1\ AUSTRALIA.
ANNO VICESIMO VICTORIA REGINA'
No. IX.
An Ordinance to enlarge the remedies of Creditors against the persons of their Debtors.
HEREAS it is expedient to extend the powers of Creditors preamble.
or clandestine departure from the colony of Western Australia, toWto arrest such of their Debtors as shall attempt, by sudden
evade the payment of their just debts ; and, in order to facilitate the timely exercise of such powers, to authorise certain public officers, at or near the seaports of the said colony, to issue process for making such arrests : And whereas it is expedient to extend the power of arrest in certain cases of fraud : Be it therefore enacted, by His Excellency the Governor of Western Australia and its De- pendencies, by and with the advice and consent of the Legislative Council thereof :—
| 20th Viet. No. 9. | 1856. |
| On affidavit of debt | I. THAT if any professing creditor shall, by the affidavit or |
| and belief debtor is | affirmation of himself, or of some other competent person, in or to |
| about to abscond, | |
| Resident may issue | the effect of the form numbered 1 in the Schedule to this Ordinance |
| process to arrest. | annexed, satisfy the Resident Magistrate or other Justice of the Peace, at or near any seaport in the said colony (and which said Resident Magistrate or Justice of the Peace respectively is hereby empowered to administer an oath on such affidavit, or to take such affirmation) that any other person is indebted to such creditor upon a judgment recorded in any Court of the said colony to the amount of ten pounds or upwards, or is otherwise indebted to such creditor to the like amount, or that such creditor has a cause of action against any other person for damages sustained to the amount of fifty pounds or upwards, and that there is probable ground for believing that the person so indebted or liable, or that any one or more of several persons jointly so indebted or liable, is about to quit the said colony, unless he, she or they be forthwith apprehended, it shall be lawful for such Resident Magistrate or Justice of the Peace, by a writ or warrant in or to the effect of the form num- |
| Form of writ. | bered 2 in the said Schedule, to be signed and sealed by him, to direct any constable of the said colony to apprehend the person |
| Or persons represented by such affidavit to be about to leave the | |
| said colony. | |
| Copy given to defen- | THAT a copy of any such writ or warrant, and indorse- ments thereon, shall, if demanded by or on behalf of the defendant, be delivered to him by the constable executing the same. |
| dant. |
Arrest founded on III. THAT if any such writ or warrant be issued as aforesaid,
| judgment to be or if a capias be issued by the Commissioner of the Civil Court of | cess.deemed final pro- the said colony under Section 1 of the Civil Court Ordinance |
2, William IV., No. I, on a judgment recovered in any Court of the said Colony, the same shall be deemed and taken to be final process, whether the court in which such judgment be recovered shall or shall not have the power of issuing process of execution against the person ; and the defendant, if arrested thereunder, may be lodged and detained in any common gaol in the said colony, until such judgment, together with the costs of arrest, be satisfied, or until such defendant shall be otherwise discharged by due course of law ; and such Resident Magistrate or Justice shall forthwith certify, under his hand, to the Registrar Clerk, or other proper officer of the court in which such judgment shall have been
1856. 20th Viet. No. 9.
recovered, the facts of such writ or warrant having been issued,
and the result thereof.
| IV. THAT if any such writ or warrant be issued by any Resi- dent Magistrate or Justice of the Peace as aforesaid, on a debt or | Modes by which |
| debtor may obtain | |
| claim not then prosecuted to final judgment, the person arrested | discharge. |
| thereunder may obtain his discharge by any one of the following modes:— |
| 1. | (When the defendant submits to the Plaintiff's claim)—By By de sit of claim, | depositing in the hands of the Resident Magistrate or Justice y Po issuing such writ or warrant the debt or damages sworn to, and (if no suit or action shall have been commenced for the recovery of such debt or damages previous to the issue of such writ or warrant) the costs of arrest ; but if any such suit or action shall have been so commenced, then by depositing as aforesaid, over and above the amount of debt or damages, the sum of Twenty pounds to answer the Plaintiff's costs ; the justice receiving any such deposit shall, as soon as rea- sonably may be, pay or cause to be paid to the plaintiff, or his authorised agent, the sum so received as debt or damages, and if there be no deposit for general costs, the costs of arrest; but, if there be such last-mentioned deposit, shall in. like manner pay to the Plaintiff, or his agent, so much thereof as shall cover the amount of Plaintiff's costs, untaxed if assented to by defendant, or in case of dispute, as taxed by the proper officer of the Court in which such suit or action shall be pending; and the said Resident Magistrate or Justice shall forthwith, in case the Plaintiff's claim for costs be assented to by the defendant, or, otherwise on being served with a certificate signed by such proper officer certifying the taxed amount of such costs, pay over the balance, if any, of the said sum of Twenty pounds to the defendant or his authorised agent. |
| 2. | By depositing in the hands of the Resident Magistrate or for debt and costs. | |
| (When the defendant intends to resist the Plaintiff's claim)— By deposit of security damages sworn to, and the sum of Twenty pounds, to answer the Plaintiff's costs, and a further sum, reckoned at the rate of sixpence for every pound of the aggregate amount of the |
| 20th Viet. No. 9. | 1856. |
said deposit for debt or damages and costs ; such poundage to be reserved by such Resident Magistrate or Justice for his own proper use and benefit, for and in consideration of his safe custody of the said deposits ; and such Resident Magis- trate or Justice shall pay over and dispose of the said de- posits according to the order of any Court in which a suit or action for the recovery of such debt or damages shall be pending at the time of such deposit, or shall be thereafter instituted.
3. By obtaining two respectable householders as sureties, to in or to the effect of the form numbered 3 in the said sche- dule, in double the amount of the debt or damages sworn to, if such debt or damages do not exceed fifty pounds ; and if the same shall exceed fifty pounds, then the penal sum of such bond shall be the sworn amount of debt or damages, together with fifty pounds in addition thereto ; and the con- dition of such bond shall be, that, if final judgment in any suit or action then or thereafter to be commenced for the recovery of the said debt or damages shall be for the Plaintiff, the defendant shall satisfy such judgment, or render himself to prison ; or that, if the defendant shall fail to make such satisfaction or render the said sureties, or one of them, shall satisfy the judgment for him, or render him to prison. Every such bond shall be executed in the presence of the Resident Magistrate or Justice of the Peace who issued the writ of arrest, or, in case of his death or absence, in the presence of any other Justice of the Peace, who respectively may, at his discretion, require any person proposing to be such surety as aforesaid, to make affidavit (to be sworn before such Resident Magistrate or Justice) that he or she has property within the said colony, inde- pendently of all his or her existing debts, worth double the amount for which he or she proposes to become bound; and every such bond and surety's affidavit, if any, shall be by such Resident Magistrate or Justice transmitted, as soon as reasonably may be, to the Court in which such suit or action shall be instituted ; and if judgment shall be for de- fendant, or the plaintiff be nonsuited or discontinue suit, such bond shall be cancelled and delivered to the defendant,
| Bail bond; two sure- | enter with the defendant himself into a bond to the plaintiff |
| ties. |
1856. 20th Viet. No. 9.
or to either of his sureties ; but if judgment be for the plain-
tiff, such bond shall, without any order of court for that purpose, be handed over to the plaintiff or his agent, on ap- plication for the same.
V. THAT from and after the passing of this Ordinance, any olicevmdesenha
| defendant arrested under a writ or warrant, issued by the Commis- on | toip | .sraorcreessstetdo |
but by delivering to the Sheriff or his deputy any such deposit as aforesaid for satisfying the plaintiff's claim, or for securing debt, damages, or costs and poundage, or by executing in the presence of the Sheriff or his deputy a bond in such form and with such con- dition, with power to the Sheriff or his deputy to require a like affidavit from any proposing surety as is hereinbefore provided with respect to arrests, under a writ or warrant issued by a Resident Magistrate, or other Justice of the Peace ; and the Sheriff or his deputy shall deal with artysuch deposit or bond in like manner as a Resident Magistrate or other Justice of the Peace receiving or taking a like deposit or bond is hereinbefore directed to deal with the same.
sioner of the said Civil Court in pursuance of the Civil Court Ordi- obtain discharge.
nance 2nd William IV., No. I, upon any claim not prosecuted to
final judgment, may obtain his discharge, not according to the 17th
| THAT it shall be lawful for any person arrested under the provisions of this Ordinance, | e |
VI.
| on the ground that he is about to quit Civil Court may b | moved for discharge |
the colony or otherwise, to apply on af fidavit to the Commissioner of of debtor.
the said Civil Court for an order or rule on the plaintiff, to shew
cause why the person so arrested should not be discharged out of
custody, on the ground that such arrest was illegal, vexatious or op-
pressive; and that it shall be lawful for such Commissioner to make
absolute or discharge such order or rule, and to direct the costs of the
application to be paid by either party, or to make such Other order
therein as to such Commissioner shall seem fit.
| THAT if, the defendant do not obtain his discharge by any of the methods aforesaid, within twenty-four hours next after (total. neottoobbta | e Luiz |
| his arrest (during which period it shall be lawful for the arresting ed in gaol. | |
| officer, if so requested by the defendant, to keep the defendant in custody elsewhere than in gaol) he may be lodged in custody in |
VII.
| 20th Viet. No. 9. | 1856. |
any common gaol at or nearest to the place of arrest. But such defendant may procure his summary removal to any common gaol at Perth or elsewhere by depositing in the hands of any neighbour- ing Justice of the Peace such sum as such Justice may deem re- quisite to cover the costs and charges of securely effecting such re- moval ; and thereupon such Justice shall, and he is hereby empowered to issue an order under his hand to the gaoler in whose custody the defendant shall then be, directing the delivery by such gaoler of such defendant to any constable named in such order, which shall be a sufficient warrant and indemnity to any gaoler acting in obedience thereto, and taking a receipt from such consta- ble for the body of such defendant; and such justice shall at the time of issuing any such order as last aforesaid deliver to the con- stable named in such order, a warrant directing him to receive into his custody the body of such defendant, and him safely to convey .
to, and lodge in, any gaol therein appointed, and directing the keeper of such last-mentioned gaol to receive and keep in his cus- tody the defendant until discharged by due course of law ; and such warrant shall be a sufficient indemnity to any constable or gaoler acting in obedience thereto.
Bill of particulars to VIII. THAT if any person be arrested under a writ or warrant
| be served, and. plaint issued by any Resident Magistrate or other Justice of the Peace as | entered.aforesaid, and no suit or action touching the subject matter of |
arrest shall be pending previous to such writ or warrant, the plaintiff or his agent shall cause to be served on the defendant at the time of arrest, or within twenty-four hours thereafter, a bill of particulars of the plaintiff's demand, and shall also cause a plaint to be entered in the office of the said Civil Court (if the subject matter of the suit be exclusively within the jurisdiction of the said Civil Court) within the period of time next hereinafter mentioned, that is to say, within forty-eight hours, exclusive of Sundays and holidays, after arrest, if made within twenty miles of Perth, and if made elsewhere, then within such time after arrest as shall be equivalent to an allowance of twenty-four hours for every ten miles of distance of the place of arrest from Perth. If there shall be at the place of arrest, or at the place in which the defendant shall be lodged in gaol after arrest, a court of. competent jurisdiction to hear and determine the subject matter of the plaintiff's claim, then the plaintiff or his agent shall within forty-eight hours after the defendant shall be so arrested, make or enter his plaint, com-
1856. 20th Viet. No. 9.
plaint, or information in such court according to the usual course of proceeding of such court; otherwise it shall be lawful for any Resident Magistrate or Justice of the Peace to discharge such de- fendant from custody.
IX.
| THAT the Commissioner of the said Civil Court, and the Commissioner of every Court of Requests in the said Colony, | Rules to be made |
| for conduct of suits | |
| and every Bench of Magistrates therein empowered to determine | against persons in |
| suits for the recovery of small debts, shall respectively, as soon as | custody. |
| reasonably may be after this Ordinance shall come into operation, establish rules for the further conduct and prosecution of suits or actions after entry of plaint against defendants in custody, under the provisions of this Ordinance; and may from time to time rescind, alter or add to such rules. |
X.
| THAT no arrest -under or by way of final process of any judgment debtor, on the ground that he is about to leave the | Arrest may be found- |
| colony, shall be deemed irregular or void, notwithstanding that the | edon unrevived judg- |
| judgment in respect of which such arrest was made ought by law to | ment. |
| have been revived previous to such arrest, provided that such judg- ment shall have been recovered or confessed within six years next preceding such arrest, and that such arrest shall be made at the instance of the plaintiff. |
| THAT no defendant arrested under the foregoing provisions, or whose arrest shall appear to the said Civil Court | No defendant to be |
| discharged from ar- | |
| to have been bond fide intended to be in conformity with such | rest on ground of de- feet or irregularity |
| provisions, shall be discharged from such arrest, by reason of any | not imputable to cor- |
| defect in form or substance in any warrant, order or other | ruption or malice. |
| document issued by any Justice of the Peace relating to such arrest or subsequent proceedings thereunder, or in any bail bond, or by reason of any irregularity in the making of such arrest, or in _any proceeding subsequent thereto on the part of any consta- ble or gaoler; unless it shall be made to appear to the satisfaction of the said Civil Court, that there are reasonable grounds for be- lieving that such defect or irregularity was wilful and induced by corrupt, malicious or oppressive motives ; nor shall any Justice of the' Peace, constable or gaoler be 'answerable, pecuniarily or otherwise, for any such defect or irregularity, unless it shall 'be -averred and proved in any action, suit, or other proceeding against |
XI.
| 20th Viet. No. 9. | 1856. |
such justice, constable or gaoler, that such defect or irregularity was wilful and induced by corrupt, malicious, or oppressive motives.
Plaintiff in certain XII. THAT it shall be lawful for the plaintiff, who shall have
| cation against person Civil Court, to apply to the Commissioner thereof for a warrant toof debtor on applica- | eases may issue ere- obtained a judgment or decree against a defendant in the said |
| tion to commissioner. arrest the defendant in such action or suit ; provided that such |
plaintiff shall, by the affidavit of himself' or some other person or persons, show to the satisfaction of the said Commissioner, that the defendant is about to remove any of his property out of the juria: diction of the said Civil Court, with intent to defraud his creditor or creditors, or that defendant has property or rights in action, which he fraudulently conceals, or that he has right in action or some interest in any public stock money, or evidences of debt, which he unjustly refuses to apply to the payment of any just judgment or decree which shall have been recorded or pronounced against him, Or
that he has any other means whereby (in the opinion of such Com-
missioner) he can pay the same, and refuses to do so, or that he has assigned, removed or disposed of, or is about to dispose of, any of his property with intent to defraud his creditor Or creditors, or that hefraudulentlycontracted the debt or incurred the obligation respect- ing which such suit is brought, and that such judgment or decree will be defeated unless such defendant be apprehended ; in any of such cases it shall be lawful for such Commissioner to authorise the arrest of such defendant by the ordinary writ of capias ad satisfacien-
dum (in such form as the said Commissioner shall direct and appoint
under his hand), the same to be by such Commissioner signed and di- rected to the Sheriff of Western Australia and his deputies ; and such writ, so issued and signed, shall be held to be full and sufficient antho- iity to such Sheriff and his deputies in that behalf to apprehend and detain in custody the person or persons therein named until he or they shall be dealt with according to law.
XIII. THAT it shall be lawful for any person so arrested to
| apply to commis-sioner for discharge Court for an order or rule on the plaintiff in any such action or | Person arrested may apply on affidavit; at any time after such arrest, to the said Civil |
suit, to show cause why the defendant should not be discharged out of custody ; and it shall be lawful for such Civil Court to make absolute or discharge such order or rule, and to direct the costs of the application to be paid by either party, or to make such order therein as to such Civil Court shall seem fit.
1856. 20th Viet. No. 9.
XIV. THAT the undermentioned fees shall or may be lawfully Fees.
demanded and received for and in respect of the undermentioned services, process, or acts, rendered, done, or issued under this Ordi- nance, (that is to say).—
By a Resident Magistrate or Justice of the Peace.
S. D.
| For taking affidavit or affirmation of debt, .. | 0 1 0 |
| For drawing same when required, ...0 2 0 For issuing warrant or warrant or arrest, ... .„ 0 2 6 And for copy thereof for service on defendant, .. ..0 1 0 For preparing and attesting execution of bail bond, –.0 7 6 For taking affidavit of surety, ... ...0 1 0 For drawing same when required, | .. | ...0 1 0 |
| For receipt of deposit money, | .. | –.0 1 0 |
By a Constable.
For making arrest within one mile of constable's
| residence,... | ...0 5 0 |
| For every additional mile one way, .. | 0 1 0 |
| For making arrest on board a ship or vessel, .. | 0 10 6 |
| Actual expenses out of pocket for boat hire and |
assistance
For conveying prisoner to gaol, or from one gaol to another, same allowance as for conveyance of pri- soners on criminal charges.
XV. THAT this Ordinance shall not come into operation until suspending clause.
it shall have received the Royal confirmation, nor until such con- firmation shall have been notified by the Governor for the time being by proclamation or other public notice.
| A. | E. KENNEDY, |
GOVERNOR AND COMMANDER—IN-CHIEF,
Passed the Legislative Council I
this 6th day of November, 1856. f
HENRY WAKEFORD,
Clerk of the Council.
| 20th -Viet: NO-. 9. | 1846: |
SCHEDULE.
No. I.
FORM OF AFFIDAVIT TO GROUND THE ISSUE BY A RESIDENT
MAGISTRATE OR JUSTICE OF THE PEACE OP A WRIT OP ARREST.
(For an Ordinary Debt.)
Western Australia}
to wit.
| A. B., of | , maketh oath and saith (or, "being one of the |
people called Quakers," solemnly affirms) that C. D., of
, is justly indebted to this deponent (or, affirmant) in the sum of , for goods sold and delivered by this deponent (or, affirmant) to the said C. D.,at his request (or otherwise, as the case may be, state the cause of action clearly), and that this deponent (or, affirmant) has been informed and verily believes that the said C. D. has engaged his passage for parts beyond seas, on board the ship or vessel which is publicly announced as about to sail from the port of , in a few days (or, as the case may be, state deponent's grounds for believing that the debtor intends to leave the colony), and this deponent further saith that for the reason aforesaid, he verily believes that the said C. D. is about to quit the colony in a few days, unless he be forthwith apprehended.
(Signed) A. B.
Sworn (or, affirmed) before me, at
in the said colony,
| the | day of |
| E. | F., | , |
Resident Magistrate at (or, for) the port of
(Or, a Justice of the Peace residing at or near the port of
1856. 20th Viet. No. 9.
(FOR DAMAGES)
:Western Australia}
to wit.
| A. B., of | , maketh oath and saith, that on or about |
| the | day, of | last, C. D., of |
did unlawfully and violently assault and beat:this 'deponent 'at
in the said calonY;15-Yrealon Of which assault this
deponent has been damnified to the amount of (or, as
the ccili:may be);':and this deponent,further saith that he has been
informed and verily believes that 51nce 7 thaeObaMisSion Ofthe,-3ditid assault the said C. D. has declared that he will, by forthwith quitting this colony, deprive this deponent of means of redress for
the said assault (or, according to the actual ground of belief that the
wrong-doer means to quit the colony); and this deponent also saith
that for the reason aforesaid he-verily believes that, unless the said C. D. be forthwith : apprehended, he; this, deponent, will be 4e- prived Of the opportunity of 'Obtaining' legal- redresragainst"the said C. D. for the wrong aforesaid.
(Signed) A. B.
Sworn, &c., (as in the preceding form:)
No. II.
WRIT OF ARREST:.
Western. Australia}
to wit.
To E. F., a constable in and for the said colony.
| ;Whereas | of | baS Da4c1q .oath. (Pr.,;affirmation) |
| before me ;that C.:P. of | is justly:: and truly |
| indebted to him in the strmof | Tor |
| goods dold and ;:delivered- to him the said a D: (or; |
| according: to ;the , | ;nature: of the debt ; :and in case . of a claim for |
damages, that he, has been damnified:10 _the amount of
by reason of assault and battery committed on--
him by C. D., of._ . or, as the facts_may warrant); and whereas A. B. has'shown to my satisfaction sufficient
ground for believing that the said C. D. is about to -quit this Colony unless he be'forthwith apprehended: Now, therefore, by virtue of the Ordinance 20th Victoria, No. 9, " to enlarge the remedies of creditors against the persons of their debtors," I command you that
| 20th Viet. No, 9. | 1856. |
you take the said C. D., if he shall be still found in this colony, and him safely keep until he shall have given me bail or deposit accord- ing to law, or until the said 0. D. shall be by other lawful means discharged from your custody, and I further command that on execution hereof you do deliver to the said C. D. a copy of this writ, and certify to me the manner and time of execution hereof.
Given under my hand and seal the
day of
| G. H. | [Seal.] |
Resident Magistrate at (or, for) the Port of
| (or, | a Justice of the Peace residing at or |
| near the Port of |
No. III.
BAIL BOND.
Know all men by these presents, that we, C. D., (defendant), of
E. F., (surety), of
| and G. H., (other surety), of | are held and |
| firmly bound to A. B., (plaintiff), of in the sum of (double the amount of debt or damages sworn to, if not exceeding fifty pounds; if exceeding that sum, then- fifty pounds in _addition to the sum sworn to), of lawful money of the said colony, to be paid to the said A. B., his certain attorney, executors, administrators, or assigns ; for which payment, to be well and truly made, we bind ourselves and each of us for himself in the whole, our and every of our heirs, executors and administrators, firmly by these presents. Sealed with our seals, dated the | day of |
The condition of the above written obligation is such that if final judgment shall be for the said A. B. in a suit or action by him against the said C. D. for the recovery of a sum of for goods sold and delivered (or as the case may be,) then and in such case the above bounden C. D. shall immediately satisfy such judg- ment, or render himself to prison, or in default thereof res- pectively the above bounden E. F. and G. H., or one of them, shall satisfy such judgment, or render the said C. D. to prison.
Sealed and delivered in the
presence of
C. D. [Seal] E. F. [Seal] G. H. [Seal]
Printed by Stirling, Sholl, and Company, Perth,
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