Debtors Act 1845 (SA)

No. 9.

By fAis Excellency G i o n c; ~ GREY, E S Q U I R E, Governor ntzd C'ommander-iu- Chief

qf \Her M a j e s t y ' ~ Procime qf XuulA Australia a d its Uepetdencks, alzd

Vice-Admid of fhe some, by and with the ndt:i-e am2 consent of the

Lqislatiue Council.

W HEREAS an Act was made ant1 passed in the Imperial Par- Preamble. liament which was held in thc First and Second Years of

c w n.

the Reign of Her present Gracious Majesty, intitulcd An Act for aboliddng Arrest on JIesnr Process in i'ivil Actions, except in certain cases; for extending the rclncdies of Creditors against the property of debtors; and for amending the l a m for the relief of Insolvent Debtors in England:" And wliercas it is deemed expedient to adopt so much of the said Act as can be applied in the administration of Justice in the prescnt circumstances of this Colony; in conformity, therefore, with the said recited Act:

Be it Enacted, by His Excellcncy the Governor of South All act,ione to be commenced by writ

o f

Australia, by and with the advice and conscnt of- the Legislative ,-,,, shall be commenced by writ of summons.

11. And be it Enacted, That if a plaintiff in my action in the The Judge of the

Supreme Court in which the defendatlt is now liable to arrest, o&r&,fendmtb Supreme Court may

whether be arrested in oertbin

whither upon an order of a Judge, or without such order, shall by

the &davit of himoelf, or of some ather person, show to the satis- faction of a J u d g ~ of the said Court that such plaintiff has a cause of action against the defendant to the amount of Twenty Founds or upwards, or has sustained damage to that amount, and that there is probable* cause for believing that any defendant is about

to quit the Province uriless he be forthwith apprehcndcd, it shall

be lawful for such Judge, by n special order, to direct that such defendant so about to quit the Province shall be held to bail for such sum as such Judge shall think fit, not exceeding the amount of the debt or damages; and thereupon it shall be lawful for such plaintiff within the time 'cvhich slid1 be expressed in' such order, but not afterwards, to sue out rt mrit of capias against any such defendant so directed to be held to bail, which writ of capias shall

be in the form contained in the Schedule to this Ordinance

annexed, and shall bear date on the day on which the same shall be

issued.

Y proceed

efendant.	111. And be it Enacted, That the Sheriff, or other officer, to calendar month aftcr thc date thci-eof, including the day of such date, but not afterwards, proceed to arrest the defendant thereupon;
to romain	whom any such writ of capias shall be clirectcd, shall, within one
until he
or makes
and such defendant, when so arrcstcd, sllall remain in custody until "
he shall have givcn n bail-bond to the Sheriff, or sl~all have made deposit of the sun1 endorsed on such mrit of capias, together with Ten Pounds foi costs, according to the present practice of the Supremc Comt; and all subscqucnt proceedings as to the putting
in and perfecting special bail, or of making deposit and payment of '
money into Court instead of putting in and perfecting special bail, shall be according to the like practice of tlic said Court, or as near thereto as the ckcumstaxwes of the case will admit,.

OrdmMybemade

nt spy utage of pro- IV. And be it Enacted, That any such spccid order may be

eeedinga before find	made, and the defeizdztnt arrested in pursuance thereof, at any time
judgment.	after the commerlcement of such adion, and before final judgment

l shall have been obtained thereln; and that a defendant in custody upon any such arrest, and not previously served with a copy of the writ of summons, may be lawfully served therewith.

b V. And be it Enacted, That it shall be lawful for any person arrested upon any such writ of capias, to apply at any timc after

w e such arrest to a Judge of the saia Court, or to the Court, for an

ay order or rule on the plaintiff in such action, to show cause why the person arrested should not be discharged out of custody; and that it shall be lawful for such Judge or Court to makc 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 Judge or Court shall seem fit: Provided that

m y such order made by a Judge may be discharged or varied by

the Court, on application made thereto by either party dissatisfied

with such order.

VI, And

VI.. And whereas it is expedient that provision should be made for giving evcry person executing a warrant of attorney to confess

Warrants of attome J and cognovit actionem

to bo executed in the

presence of an

judgment, or a cognorit act,ionem, due information of the nature

attorney on Lehalf of

and effect thereof: Be it Enacted, That from and after thc time

tho person.

appointed for the commenccnlerlt of this Ordrlir ance, no warrant of attorney to confess judgment in any personal action, or cognovit A

actionern given by any person, shall be of any force unless thcre be present some attorney of the Xuprcine Court on behalf of such person, exprcssly named by him ancl at his request, to inform him of thc nature and effect of such warrant of attorney, or cognovit, before the samc is executed, which attorney shall subscribe his name as a witnesss to the due execution thereof, and thereby declare himself to be attorney for the person cxccuting thc same, and state that he subscribes as such attorney.

Wnrranf h., not

VII. Aud b e it Enacted, That a warrant of attorney to confess fornldly executed,

judgment or cognovit actionem not executed in manner aforesaid,

invalid.

shall not be rendered valid by proof that the person executing the samc clid in fact unclerstmd the n a t ~ ~ r e nncl effect thereof, or was fully informed of the sanle.

VIII. And be it Enacted, That by virtue of any writ of ficri facias to be sued out of the Supreme or any inferior Court after the

seize money, bank

Sheriff empowemd to '

notes, &C., and topay money or bank notes

time appointed for the commencement of this Ordinance, or any

to execution oreditor,

precept in pursuance thereof, the Sheriff or other officcr having the

and to sue for amount

sccurcd bp bills of

execution tllcrcof may and shall seize and take any nmiey or b m ~ k

exchangeand other

notes (whetllcr of the Governor and ~ o q a n ~ of thb Bank of securities.

England, or auv other bank or bmlws), and any clicques, bills of ,.,ity of Bhcrif.	Proviso ns to haem-
exchange, proi&ssory l~oies, bonds, speciulties, or other securities for lnoiley belonging to the pcrson against whose effects such writs of fieri ffacias slldl be sued out; and may and shall pay or deliver to thc party suing out such execution, any money or bank notes which shall be so seized, or a mfficient part thercof; and may and shall hold m y such cheques, bills of exchange, promissory notcs, bonds,
for the amount by such writ of ficri facins directed to be levied, or	gecialties, 01% other securities for money, as n security or securities
so much therof as sllall not have been otherwise levied and raised; and inay sue in the name of such Sheriff' or other ofiicer for the recovery of the sum or sums secured tllcreby, if and when the time of payment thercof shall haw arrived; and that thc payment to such Sheriff or other officer by the yerty liable, on any such cheque, bill of exchange, promissory note, bond, specialty, or other security, with or witllout suit, or the recovery and levying cxccution against the party so liable, s l d l cliscl~arge him to the extent of such payment, or of such recovery and levying such execution, as the case irmy be, from his liability on any such cheque, bill of exchange,, promissory note, bond, specialty, or other security; and such Sheriff or other officer may and shall pay over to the party suing out such writ the money so to be recovered, or such part thercof as shall be sufficient to discharge the amount by such writ directed to be levied; and if, after satisfaction of the amount so to

be

and expenses, any eriff or other officer, nst whom such writ ch Sheriff or other

le upon any such cheque, ecialty, or other security, shall cnter into a bond, ing him from all costs n of such action, or to e thereof, the expense ney to be recovered in

a n ~ t r ~ b d IX. And be it Enacted, That if any judgment creditor who

under thc powers of this Ordinance shall have Gbtained any charge or be entitled to the benefit of any security whatsoever, shall, afterwards, and before the property so charged or secured shall have been converted ihto money or realized, and the produce thereof applied towards payment of the judgment debt, cause the person of the judgment debtor to be taken or charged in execution upon such judgment, then and in such case such judgment creditor shall be deemed and taken to have relinquished all right and tide to the benefit of such charge or security, and shall forfeit the same accordhgly.

X. And be it Enacted, That every judgment debt shall carry

interest at the rate of Five Pounds per centum per amurn from

the time of entering up the judgment, or from the time of the

commencement of this Ordinance in cases of judgments then entered up and not carrying interest, until the same shall be satisfied, and such interest may be levied mder a writ of execution on such

judgment. CL

XI, And be it Enacted, That all 4ecrees and orders of the said Supreme Court sitting in Equity, and all rules of the said Court

made in any matter of Common Law, and all orders of the said	Court, or of any Judge thereof in mattcm of i~~solvency or of
lunacy, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgment in the said Supreme Court, and the person to whom
any such moneys, or costs, charges, or expenses, shall be payable,
shall be deemed judgment creditors within the meaning of this Ordinance; and all powers hereby given to the Judge of the said Supreme Court with respect to matters of Common Law depending in the same Court, shall and may be exercised by the said Court with respect to matters of Equity therein depending, and by any Judge thereof in matters of lunacy or of insolvency; and all remedies hereby given to judgment creditors are in like manner
given to persons to whom any moneys, or costs, charges, or
expenses, are by such ordexs or rules re~pectively directed to be
+d. c

XII. And

XII. And be i t Enacted, That such new or altered writs s l d l be ~~~e~~ k

sued out of the Supreme Court as may be deemed necessary or expedient for giving effect to the provisions hereinbefore contained,

and in such forms as the Judgc or Judges of the said Court shall

from time to time think fit to ordcr; and the execution of such writs shall be enforced in such and the samc manner as the execu- tion of writs of execution is now cnforceil, or 2s ncar thereto as the circumstances of the case will admit, and that any existing writ, the form of ~vllich shall bc in any manner altered in pursuance of this Ordinance, shall nevertheless be of thc samc forcc and virtue as if no alteration had been made therein, cxcrpt so far as the effect

thercof may be varied by this Ordinance. A

XIII. And be it Enacted, That this Ordinance sllall commence g;g.,";;me~t of

and take cffcct from and after the first day of August next.

G. GREY,

Governor and Commander-in-Chief.

Passed the Legislative CO lcslci E this

Tenth day of' Jub, One Thousand

Eight Z.undred and Forty$ve.

W. L. O'HALLORAN,

Clerk of Council.

SCHEDULE

/

SCHEDULE WHICH THIS ORDINANCE REFERS.

VICTORIA, BC., to Qa Sherif of South Austtolia, Greeting.

WE command you that you take C. D., if he be found in your Bailiwick, and him

aafely keep until he shall have given you bail, or made depdsit nith you according to lrw, in an action on promises (or of debt. &C.), at the suit of A. B., or until the said C. D. shall, by other lawful means, be discharged from your custody: And we do further command you that on execution hereof, you do deliver a copy hereof to the said C. D.: And we hereby require thc said C. D. to take notice, that within

eight dajs after the execution hereof on him, inclusive of the day of such execution,

he ahould cause special bail to be put in for him in our Supreme Court to the said action; and that in default of so doing such proceedings may be had and taken as

are mentioned in the ~vsrning written or endorsed hcreon: And we do further

command you, that immediately after the execution hereof, you do return this writ to our said Supreme Court, together with the manner in which you shall have executed the same, and the day of the execution thcrcof; or if the anme shall remain unexecuted, then that you do so return the same at the expiration of one calendar month from the date hereof, or sooner if you shall be thereto required by order of the said Court or any Judge thereof.

at Adelaide, the day of

Memorandum to be subscribed to the Wr i t.

This writ to be executed within one calendar month from the date thereof, including the day of. such date, and not afterwards.

A warning to the Defendant.

If a defendant, having given bail on the arrest, shall omit to put in special bail aa

required, the plaintiff may proceed on the bail bond.

Indorsemtnts to be made on the W r i t.

Bail for pounds, by ordcr of (,mning Ms person mshiny the order)

dated this day of

- This writ was issued by E. F., attorney for Lhc plaintiff (or plainlfs) within named; or

This writ was is~ueC in person by thc plaintiff within named, who rcsidcs at

(ntwtion t he city, town, sheet, and mnzbor of	the house of the plninttps reaidancc,
if any such there be).

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A D ~ = : Printed by authority by ?F. C. Cux, Government l'riotcr, Yictork-square.