No. XI.
An Act for the relief of Debtors in Execut ion for Debts which they are unable to pay.
[6th March, 1832.]
| WH E R E A S an A c t of t h e Governor in Counci l was passed in | e leventh year of t h e re ign of H i s la te Majesty | K i n g | George |
t h e
| the F o u r t h in t i tu led " An Act for | the relief | of Debtors | and for | an |
| " equal distribution of their Estates and Effects amongst | Creditors" |
which said Act will expire on t h e t h i r d clay of Apr i l n e x t A n d whereas it is expedient to m a k e provision for t h e relief of such per sons as b y misfor tune a n d wi thou t be ing gu i l ty of f raud or dishonesty m a y be impr i soned for debts or demands which t hey arc unab le to pay Be i t therefore enacted by H i s Excel lency t h e Governor w i t h t h e
| advice of t h e Legis la t ive Counci l of t h e said Colony | Tha t i t shall | a n d |
| m a y be lawful for any person from and after t h e t h i r d | day of | A p r i l |
nex t w h o shall have been charged in execut ion in any pr ison in N e w Sou th V a l e s for a period of t h ree m o n t h s or u p w a r d s for or by reason of any debt damages or costs s u m or sums of money to apply b y pe t i t ion in a s u m m a r y way to t h e Supreme Cour t or to any of t h e
| J u d g e s of t h e | Supreme Cour t for h is or he r d ischarge from | custody |
a n d such pe t i t ion shal l set for th his or he r inabi l i ty to pay t h e debt or demand for which h e or she is impr isoned and shall be subscr ibed
| by such pr i soner | a n d | shal l be for thwi th filed in such Cour t . |
| 2. A n d for t he be t t e r | a n d | more | effectually | car ry ing | th i s | A c t |
| in to effect and to p reven t t h e delays t h a t m a y arise from t h e | adjourn |
| m e n t of t h e | o rd inary | s i t t ings | of | t h e | Supreme | Cour t | Be | i t | fu r the r |
| enacted T h a t it shall a n d m a y be lawful for t h e | said | Sup reme | Cour t |
| as often as t hey see fit t o appoin t days and t imes | for t h e | h e a r i n g a n d |
| de te rmina t ion | of such pet i t ions | and | all | fur ther | proceedings | t h e r e u p o n |
| a n d | t h a t one or more of t h e J u d g e s of t h e | said Supreme | Cour t | shal l |
| a n d m a y sit a n d pres ide t he re in | a n d | t h a t t h e act | and | proceedings of |
any one of t h e J u d g e s pres id ing the re in shal l be as val id a n d effectual as if t h e said act a n d proceedings h a d t aken place in t h e ord inary
| s i t t ings of t h e | said Supreme | Cour t . |
3. A n d be i t fu r ther enacted Tha t every such pr isoner who
| shal l apply for relief u n d e r | th i s | A c t | sha l l t oge the r | wi th | his or | her |
| pe t i t ion deliver in to t h e said Cour t a schedule | conta in ing | a | full | a n d |
| fair descr ipt ion of such pr isoner as to his or her n a m e t r a d e | or | profes |
| sion toge the r w i th t h e u sua l place of | abode | of | such pr i soner | a n d |
| also a pa r t i cu la r | s t a t emen t of t he several j u d g m e n t s | for | which | he | or |
she shal l have been ar res ted or u p o n which any detainer or de ta iners m a y have been lodged aga ins t h i m or her and t h e bond fide cause or considerat ion of or for which t h e demands arose upon which such j u d g m e n t s were had and also a full t r u e and par t i cu la r account a n d discovery of all t he es ta te a n d effects of such pr isoner rea l a n d personal in possession reversion remainder or expectancy of every k i n d and nature whatsoever which such pr isoner or any person or persons in t r u s t for h i m or her or for h is or her use benefit or advan t age in any m a n n e r whatsoever shall have been or shal l be seized or possessed of or in teres ted in or ent i t led u n t o ei ther solely or j o in t ly w i t h a n y o ther person or persons or which such pr i soner or a n y o ther person or persons a t t h e t ime of t i l ing his or he r pe t i t ion or a t a n y t ime since shall have h a d any power to dispose of or charge for his or he r benefit t oge the r w i th a full t r u e and perfect account of all debts at these t imes respectively due or g rowing due a n d owing to such pr isoner or t o a n y person or persons in t r u s t for h i m or her or for his or her benefit and advan tage ei ther solely or jo in t ly w i th any o ther person or persons a n d t h e names and places of abode of t h e several persons from w h o m such debts shall be due or g rowing due a n d of t he witnesses who can prove such debts as far as such pr isoner can set forth t he same a n d in w h a t m a n n e r all or any pa r t of such es ta te or effects real or personal have been applied or disposed of since t h e t i m e of t h e commencement of any act ion or su i t u p o n which such pr isoner was ar res ted as aforesaid a n d which or w h a t p a r t of such es ta te or effects or any of t h e m shal l have been in any m a n n e r conveyed assigned disposed of charged or incumbered in any m a n n e r whatsoever and when and in wha t m a n n e r a n d
| for | w h a t considerat ion and to w h o m | and for whose | benefit | i n |
| pa r t i cu la r a n d which and w h a t p a r t or pa r t s of such es ta te and effects shal l a t t he t ime of t he p resen ta t ion of such schedule be in any m a n n e r appl icable to t he d ischarge of t h e demands for which he or she is in execut ion or can be m a d e available for such purpose A n d t h e said schedule shall also conta in a ba lance sheet of so m u c h of t h e receipts and expendi tu res of such pr isoner a n d of t he i tems composing t h e same as shal l be a t any t i m e requi red by t h e Cour t in t h a t behalf a n d shal l also fully a n d t r u l y describe t he wear ing appare l bedding and o ther necessaries of such pr isoner and his or he r family no t exceeding in t h e whole t he value of twen ty pounds which m a y be | excepted by such pr isoner from t h e operat ion of t h e said A c t | toge the r |
w i t h t h e va lue of such excepted art icles respectively a n d t h e said schedule shal l be sworn to and signed by such pr isoner in t h e presence of two witnesses and after p resen ta t ion thereof to t h e said Cour t as aforesaid shal l be for thwi th filed in t he said Cour t together wi th all books papers deeds a n d wr i t ings in anywise re la t ing to such pr i soner ' s estate or effects in his or he r possession or u n d e r his or he r control .
| 4. A n d be it fu r ther | enacted T h a t t h e said Cour t shal l | cause |
notice of t he filing of every such pet i t ion and schedule and of t he t ime so appointed as aforesaid for hea r ing t h e ma t t e r s and th ings the re in set forth to be g iven to t h e creditor or creditors a t whose suit such pr i soner was ar res ted or detained in execut ion or t o t h e a t to rney or agen t of such creditor or credi tors respectively.
| 5. A n d be i t fu r ther enacted Tha t | a t t h e hea r ing as | aforesaid |
| t h e said Cour t | shall examine in to t he m a t t e r s | of t h e schedule of |
| every such pr isoner so b r o u g h t | before | t h e | said | Cour t | u p o n | t h e oa th |
of such pr isoner and of such par t ies a n d o ther witnesses as t h e said Cour t shal l t h i n k fit to examine t he r eupon and in case any credi tor
hav ing
| h a v i n g | such | j u d g m e n t | as | aforesaid | shal l | i n t end | to | oppose | such |
pr i soner ' s d ischarge i t shal l a n d m a y b e lawful for such credi tor to p u t ques t ions t o such pr isoner a n d examine such witnesses as t h e said Cour t shal l t h i n k fit t o u c h i n g t h e m a t t e r s in such schedule and
| t o u c h i n g | such | o ther | m a t t e r s | as | t h e | said | Cour t | sha l l | t h i n k | fit | a n d |
| proper to enqui re in to in order to t h e due execut ion of t h i s A c t | and |
| in case t h e said Cour t | shall | en te r t a in | any | doubt | t o u c h i n g | a n y | m a t t e r |
| al leged agains t such pr i soner a t such hea r ing to p reven t | h i s or | he r |
| d ischarge or o therwise t o u c h i n g t h e schedule or | examina t ion | of | such |
| pr i soner o r i t shal l appear t h a t a m e n d m e n t | is | necessary | to | be | m a d e |
| of such schedule or in case such pr isoner shal l n o t answer u p o n | oa th |
| to t h e satisfaction of t h e said Cour t i t shal l be lawful for t h e | said |
| Cour t t o ad journ t h e | h e a r i n g | a n d | examina t ion | of | such | pr i soner | and |
| of | t h e m a t t e r s of | h i s or | h e r | schedule | a n d | of | witnesses | t h e r e u p o n | t o |
| some fu ture s i t t ing of t h e said Cour t a n d in every such case t h e | said |
| Cour t shall commit | t h e said | pr isoner to custody the re to r e m a i n | u n t i l |
| such fu tu re day so as aforesaid to be appoin ted | for t h e h e a r i n g of | t h e |
| said | m a t t e r | when | such hea r ing and examina t ion shal l be fur ther |
proceeded in as often as to t h e said Cour t shal l seem fit.
| 0. A n d | be i t fu r ther | enacted | T h a t | after such examina t i on |
| m a d e | i n to | t h e | m a t t e r s | of | t h e | pe t i t ion | and | schedule | of any | such |
| pr i soner as hereinbefore | directed i t shall and m a y be lawful for t h e |
| said Cour t u p o n | such pr isoner swear ing to t h e | t r u t h | of h i s | or | h e r |
| schedule to adjudge t h a t such pr i soner shal l be ent i t led | to t h e | benefit |
| of t h i s A c t immedia te ly or a t such t i m e as t h e said | Cour t shal l | direct |
in p u r s u a n c e of t h e provisions hereinaf ter conta ined in t h a t behalf as t o t h e several debts and demands inc luded in such schedule a n d for wh ich such pr i soner shal l have been impr isoned or deta ined in execu t ion a n d to cause such pr i soner to be discharged accordingly.
7. A n d be it fu r ther enacted T h a t in case it shall appear to t h e
| said Cour t | t h a t such pr i soner has f raudulen t ly | w i t h in t en t | t o | conceal |
t h e s ta te of h i s or he r affairs or t o defeat t h e object of t h i s A c t destroyed or o therwise wilfully prevented or purpose ly wi thhe ld t h e p roduc t ion of a n y books papers or wr i t ings re la t ing to such of his or
| he r affairs as are subject | t o inves t iga t ion | u n d e r | th i s A c t | or k e p t | or |
| caused to be k e p t false books or m a d e false entr ies i n or w i thhe ld entr ies from or wilfully a l te red or falsified any such books papers or wr i t ings or t h a t such pr isoner has f raudulen t ly a n d w i t h i n t e n t t o d iminish h is m e a n s of p a y i n g a n d satisfying any creditor or credi tors a t whose suit he shal l have been impr isoned or deta ined in execu t ion | as aforesaid have discharged or concealed any debt due to h i m or m a d e |
| away w i t h or ass igned t ransfer red charged delivered or m a d e over a n y |
| of his es ta te or effects or any p a r t of h i s p rope r ty of w h a t k i n d soever after t h e commencement of h is or her impr i sonmen t in execut ion as aforesaid t h e n i t shal l a n d m a y be lawful for t h e said Cour t t o o rder and adjudge t h a t such pr isoner shal l be commi t t ed and impr i soned i n t h e common gaol for such per iod or per iods n o t exceeding th ree years in t h e whole as t h e said Cour t shal l direct . |
| 8. A n d be i t fu r ther enac ted T h a t in case i t | shal l appear to t h e |
said Cour t t h a t such pr i soner shal l have been impr isoned for a n y debt or demand cont rac ted f raudulen t ly or by means of false pre tences or w i thou t h a v i n g a n y reasonable or probable expecta t ion a t t h e t i m e when cont rac ted of pay ing t h e same or shall have f raudu len t ly or b y means of false pre tences obta ined forbearance of any of h i s or he r said debts or shal l be impr i soned for damages recovered in any ac t ion for c r iminal conversat ion w i t h t h e wife or for seducing t h e daugh te r or servant of t h e plaintiff i n such act ion or for b r each of promise of mar r i age m a d e to t h e plaintiff in such act ion or for damages recovered
| in any act ion for a mal ic ious prosecut ion or for l ibel or for s lander | or |
i n
i n any o the r ac t ion for a malicious in jury done to t h e plaintiff t he re in or in any act ion of to r t or t respass t o t h e person or p roper ty of t h e plaintiff the re in whe re i t shal l appear to t h e satisfaction of t h e Cour t t h a t t h e in jury complained of was mal ic ious t h e n i t shall and m a y he lawful for t he said Cour t to order and direct t h e said pr isoner to be c o m m i t t e d to t h e common gaol for a period or periods no t exceeding two years in t he whole as t h e said Cour t shall direct .
9. A n d be i t fur ther enacted Tha t whenever any such creditor a s aforesaid opposing t h e discharge of any such pr isoner shal l prove to t h e satisfaction of t h e said Cour t t h a t such pr isoner has done or commi t t ed any act for which upon such adjudicat ion as aforesaid he or she may be commi t t ed to such cus tody as aforesaid for a period no t exceeding t h r e e years as aforesaid t h e said Cour t shal l adjudge t h e t a x e d costs of such opposi t ion to be pa id to such opposing creditor out of t h e es ta te a n d effects of such pr isoner before any o ther appropr ia
| t ion shal l be m a d e thereof | and in al l o ther cases of opposi t ion | to a |
| pr i soner ' s discharge be ing subs tan t i a t ed or effectual | it shall | be | lawful |
for t he said Cour t t o adjudge in l ike m a n n e r if i t shal l seem meet .
| 10. A n d be i t fu r ther enacted T h a t as soon as any such | adjudi |
cat ion shal l be m a d e for t h e discharge of any pr isoner p u r s u a n t t o t h e provisions of th i s Ac t or Ord inance all and every t h e estates and effects of such pr isoner shall be immedia te ly l iable to be t a k e n in execu t ion on a n y such j u d g m e n t or j u d g m e n t s a n d sold by t h e
| Sheriff of t h e said Cour t a n d t h e proceeds of such | sale shal l be pa id |
to or d i s t r ibu ted ra teab ly amongs t t h e creditor or credi tors of such pr isoner a t whose suit he or she shal l have been impr isoned or de ta ined in execut ion and all debts a n d claims whatsoever due a n d owing to such pr i soner shal l a n d m a y a t t h e ins tance of any such credi tor or creditors be sued for and recovered in t he n a m e of such pr isoner a n d t h e proceeds after pay ing all expenses incur red in t h e
recovery thereof shall be pa id a n d d is t r ibu ted in l ike m a n n e r as t h e
| proceeds of t h e sale of t h e es ta te and effects of such pr i soner a re hereinbefore directed to be pa id a n d d is t r ibu ted and if such creditor or credi tors as aforesaid shal l not be fully paid and satisfied as well i n respec t of any such j u d g m e n t or j u d g m e n t s as aforesaid upon w h i c h such pr isoner shal l have been t a k e n or deta ined in execut ion as of al l such necessary costs as t h e Cour t shal l award or if a t a n y t i m e after t h e discharge of such pr isoner as aforesaid i t shal l appear t o t he satisfaction of t h e said Cour t t h a t such pr isoner is able to satisfy such j u d g m e n t or j u d g m e n t s or t h a t he or she is dead leaving assets | t h e said Cour t | m a y permi t | execut ion to be t a k e n out on any such |
| j u d g m e n t | or j u d g m e n t s | for | such | s u m | of m o n e y | as | u n d e r | all | t h e |
| c i rcumstances of t h e case t h e Cour t | shal l order | such s u m to be | pa id |
| and | d is t r ibu ted | in l ike m a n n e r as hereinbefore | directed | and such |
| fur ther | proceedings | shal l and m a y be h a d upon | such j u d g m e n t | as m a y |
| seem fit t o t h e discret ion of t h e said | Cour t | from | t ime to t i m e | u n t i l |
t h e whole of t h e debts due to t h e several credi tors as aforesaid aga ins t w h o m such d ischarge shall have been obta ined shall be fully paid and satisfied toge the r w i t h such costs as t h e said Cour t shal l t h i n k fit t o award and no scire facias shall be necessary to revive any such j u d g m e n t on account of any lapse of t ime b u t execut ion shal l a t all t imes issue the reon by v i r tue of t he order of t h e said Cour t Provided a lways t h a t i n case any such appl ica t ion shal l appear t o t h e said Cour t t o be i l l -founded or vexat ious it shall be lawful for t he said Cour t no t only to refuse to m a k e any order on such appl icat ion b u t also to dismiss t h e same w i t h such costs agains t t h e p a r t y or par t ies m a k i n g t h e same as to t h e said Court shall appear reasonable and the said costs shall be
| 1 1 . A n d be i t fu r ther enacted | T h a t in case any such | pr i soner |
shal l after h e or she shall h a r e been discharged by any such adjudi cat ion as aforesaid become ent i t led to or possessed of in his or he r own r i g h t any stock in t h e b a n k es tab l i shments of th i s Colony or any bil ls of exchange promissory notes b a n k notes or o the r choses in act ion or o ther p rope r ty whe the r t h e same be in th i s Colony or else- where which by law cannot be t a k e n in execut ion u n d e r any such j u d g m e n t as aforesaid and such pr isoner shall have refused to convey or ass ign or t ransfer such stock bills of exchange promissory notes b a n k notes or o ther choses in act ion or other p roper ty or so m u c h thereof as m a y be sufficient to satisfy any such j u d g m e n t t h e n a n d in such case i t shall and m a y be lawful for any of t h e credi tors aga ins t w h o m such pr isoner shal l have obta ined his d ischarge to apply by pe t i t ion in a s u m m a r y way se t t ing for th t h e facts of t he case to t h e
| said Cour t and to p r a y t h a t | t h e said pr isoner | m a y be t a k e n a n d | com |
| m i t t e d to custody no twi th s t and ing | any such adjudicat ion | and | discharge |
as aforesaid and t h e r e u p o n if upon examina t ion by t h e said Cour t a n d hea r ing as well t h e said credi tor or creditors as t he said pr isoner in case he or she shal l appea r or (due not ice hav ing been given to h i m or her) shal l no t appear i t shal l appear to t he said Cour t t h a t t h e con ten t s of such pe t i t ion are t r u e t h e n a n d in such case t he said Cour t shal l so
| declare and adjudge and | shall t h e r e u p o n order t he said pr isoner to be |
apprehended and recommi t t ed to pr ison u n t i l he or she shal l convey ass ign a n d t ransfer such stock bil ls of exchange promissory no tes or o the r choses in act ion and o ther p roper ty or so m u c h thereof as t h e said Cour t shall direct for t h e benefit of such credi tors as aforesaid.
12. A n d whereas t h e es ta te b o t h real a n d personal of any person
whose d ischarge has been adjudicated u n d e r th i s A c t m a y no t be sufficiently described or discovered in his or he r schedule so sworn to as aforesaid Be i t therefore enac ted T h a t it shall a n d m a y be lawful
| to and for t h e credi tors aga ins t w h o m any such pr isoner shal l | have |
obta ined his d ischarge as aforesaid from t i m e to t i m e to apply to t h e said Cour t se t t ing for th t h a t such person or his wife or any other person w h o shal l be k n o w n or suspected to have any of t he es ta te or effects of such pr i soner in his or her custody possession or control or a n y person who shal l be believed to be indebted to t h e said pr isoner or t o be capable of giving informat ion to enable t h e Cour t or t h e said credi tors m o r e easily to discover or ob ta in possession of t h e es ta te or effects of such pr isoner m a y be examined as to any m a t t e r s or t i l ings