English Arrests Act Adoption Act 1828 No 2a (NSW)

No. II.

An Act for adopting a certain Act of Parl iament passed in the Seventh and E i g h t h Years of His Majesty King George the Four th to regulate the Practice of Arrests. [26th March, 1828.]

Majesty intituled " An Act to prevent Arrests upon Mesne Process

WH E R E A S it is expedient that a certain Act of Parliament made and passed in the seventh and eighth years of His present

" where the Debt or Cause of Action is under Twenty Pounds and to " regulate the Practice of Arrests " should be adopted in New South Wales Be it enacted by His Excellency the Governor of New South Wales with the advice of the Council that the said Act of Parliament shall be and the same is hereby directed to be adopted in New South Wales and its Dependencies and applied in the Administration of Justice in like manner as other Acts of Parliament are adopted and applied in the said Colony.

ANNO SEPTIMO & OCTAVO GEORGII IV. REGIS.

CAP LXXI.

An Act to prevent Arrests upon Mesne Process where the Debt

or Cause of Action is under Twenty Pounds and to regulate

the Practice of Arrests. [2nd July, 1 8 2 7 . ]

W H E R E A S by an Act made in the twelfth year of the reign of His late Majesty King George the First intituled "An Act to

prevent frivolous and vexatious Arrests" it was amongst other things enacted That from and after the twenty-fourth day of June one thousand seven hundred and twenty-six no person should be held to special bail upon any process issuing out of any superior Court where the cause of action should not amount to the sum of ten pounds or upwards nor out of any inferior Court where the cause of action should not amount to the sum of forty shillings or upwards and that in all cases where the cause of action should not amount to ten pounds or upwards in any such superior Court or to forty shillings or upwards in any such inferior Court and the plaintiff or plaintiffs should proceed by way of process against the person he she or they should not arrest or cause to be arrested the body of the defendant or defendants but should serve him her or them personally within the jurisdiction of the Court with a copy of the process and if such defendant or defendants should not appear at the return of the process or within four days after such return in such case it should be lawful for the plaintiff or plaintiffs

Q upon

upon affidavit being made and filed in the proper Court of the personal service of such process as aforesaid (which affidavit should be filed gratis) to enter a common appearance or file common bail for the defendant or defendants and to proceed thereon as if such defendant or defendants had entered his her or their appearance or filed common bail which Act was explained and amended by an Act passed in the fifth year of the reign of His Majesty King George the Second intituled " An Act to explain amend and render more effectual an Act made in "the Twelfth Year of the Reign-of His late Majesty King George the " First intituled ' An Act to prevent frivolous and vexatious Arrests' " And whereas by the said Act made in the fifth year of the reign of His said late Majesty King George the Second it was enacted that were the cause of action should not amount to ten pounds or upwards in any superior Court or to forty shillings or upwards in any inferior Court no special writ or writs nor any process specially therein expressing the cause or causes of action should be sued forth or issued from any such superior or inferior Court to compel any person or persons to appear thereon in such Court or Courts and all proceedings and judgments on any such writs are thereby declared to be void and of none effect And whereas the said several Acts being temporary the same were afterwards made perpetual by an Act passed in the twenty- first year of the reign of His said late Majesty King George the Second And whereas by an Act passed in the nineteenth year of the reign of His late Majesty King George the Third intituled " An Act for extend- " ing the provisions of an Act made in the Twelfth Year of the Reign of " King George the First intituled ' An Act to prevent frivolous and vexatious " Arrests' and for other purposes" it was enacted that from and after the first day of July one thousand seven hundred and seventy-nine no person should be arrested or held to special bail upon any process issuing out of any inferior Court where the cause of action should not amount to the sum of ten pounds or upwards but that the like copies of process should be served and the like proceedings had thereupon in such inferior Court in all cases where the cause of action should not amount to ten pounds or upwards as are directed to be had by the said Act of the twelfth year of the reign of King George the First in such inferior Court where the cause of action shall not amount to the sum of forty shillings any law or usage to the contrary notwithstanding and further provisions were made touching proceed­ ings in such inferior Courts in conformity to the provisions of the said former Act and so much of any Act or Acts passed for the recovery of

imprisonment of defendants where the cause of action should amount

debts within any districts and jurisdictions as authorized arrest and

to less than ten pounds was thereby repealed and further provisions were made touching actions in inferior Courts where the cause of action should not amount to ten pounds And whereas by an Act passed in the forty-third year of the reign of His late Majesty King George the Third intituled " An Act for the more effectual prevention " of frivolous and vexatious Arrests and Suits and to authorize the " levying of poundage upon executions in certain cases " it was enacted that from and after the first day of June one thousand eight hundred and three no person should be arrested or held to special bail upon any process issuing out of any Court within those parts of the United Kingdom of Great Britain and Ireland called England and Ireland for a cause of action not originally amounting to such sum for which such person was by the laws then in being liable to be arrested and held to bail 'over and above and exclusive of any costs charges and expenses that may have been incurred recovered or become chargeable in or about the suing for or recovering the same or any part thereof And whereas it is expedient to extend and render more effectual the pro­

visions

visions of the said recited Acts Be it therefore enacted by the King's Most Excellent Majesty by and with the advice and consent of the Lords Spiritual and Temporal and Commons in this present Parliament assembled and by the authority of the same That from and after the first day of August one thousand eight hundred and twenty-seven no person shall be held to special bail upon any process issuing out of any Court where the cause of action shall not have originally amounted to the sum of twenty pounds or upwards over and above and exclusive of any costs charges and expenses that may have been incurred recovered or become chargeable in or about the suing for or recovering the same or any part thereof and that in all cases where the cause of action shall not amount to twenty pounds or upwards exclusive of such costs charges and expenses as aforesaid and the plaintiff or plaintiffs shall proceed by the way of process against the person he or she or they shall not arrest or cause to be arrested the body of the defendant or defendants but shall serve him her or them personally within the jurisdiction of the Court with a copy of the process and proceedings thereupon in such manner as by the said Act of the twelfth year of the reign of His late Majesty King George the First is provided in cases where the cause of action shall not amount to ten pounds or upwards in any superior Court or to forty shillings or upwards in any inferior Court and that where the cause of action in any Court shall not amount to the sum of twenty pounds exclusive of such costs charges and expenses as aforesaid no special writ or writs nor any process specially therein expressing the cause or causes of action shall from and after the said first day of August be sued forth or issued from any Court in order to compel any person or persons to appear thereon in such Court and all proceedings and judgments that shall from and after the said first day of August be had on any such writ or process shall be and are hereby declared to be void and of no effect.

2. And whereas by the said Act passed in the forty-third year of the reign of His late Majesty King George the Third persons arrested upon mesne process were enabled in lieu of giving bail to the Sheriff to deposit in the hands of the Sheriff the sum indorsed upon the writ together with ten pounds in addition to such sum to answer the costs which might accrue up to the time of the return of the writ and also such further sum if any as should have been paid for the King's fine upon any original writ and should thereupon be discharged from such arrest And whereas it is expedient to extend the provisions of the said Act and to enable persons who have been arrested to deposit or pay into	the Court in which the writ shall be returnable the sum indorsed upon
the writ together with an additional sum as a security for costs to
abide the event of the suit instead of putting in and perfecting bail in the said action Be it therefore enacted That in all cases in which any defendant shall have been discharged from arrest upon making such deposit as is required by the said recited Act and the sum so deposited shall have been paid into Court it shall be lawful for such defendant instead of putting in and perfecting special bail in the action according to the course and practice of the Court to allow the sum so deposited with the Sheriff and by him paid into Court as aforesaid together with the additional sum of ten pounds to be paid into Court by such defendant as a further security for the costs of the action to remain in the Court to abide the event of the suit and in all cases where any defendant shall have been arrested and shall have given bail to the Sheriff or shall have been arrested and remain in custody it shall be lawful for such last-mentioned defendant instead of putt ing in
and perfecting special bail to deposit and pay into the said Court the sum indorsed upon the writ together with the amount of the King's
fine if any upon the original writ and the further sum of twenty pounds

as

as a security for the costs of the action there to remain to abide the event of the suit and thereupon the said defendant may and he is hereby required to enter a common appearance or file common bail in the action within such time as he would have been required to have put in and perfected special bail in the action according- to the course of the said Court or in default thereof the plaintiff in the action is hereby empowered to enter such common appearance or file common bail for the said defendant and the cause may proceed as if the defendant had put in and perfected special bail and in case judgment in the said action shall be given for the plaintiff he shall be entitled by order of the Court upon motion made for that purpose to receive the said money so remaining in or so deposited or paid into the Court as aforesaid or so much thereof as will be sufficient to satisfy the sum recovered by the judgment and the costs of the application and if judgment be given in the said action for the defendant or the plaintiff discontinue his suit or be otherwise barred or in case the sum deposited and paid into Court be more than sufficient to satisfy the plaintiff the said money so deposited or paid into Court or so much thereof as shall remain shall by order of the Court upon motion to be made for that purpose be repaid to such defendant.

3. Provided always and be it enacted That it shall and may be lawful for the said defendant who hath made his election to make such deposit and payment as aforesaid at any time in the progress of the cause before issue joined in law or fact or final or interlocutory judgment signed to receive the same out of Court by order of the said Court upon putt ing in and perfecting special bail in the cause and payment of such costs to the plaintiff as the said Court shall direct.

4. Provided also and be it further enacted That it shall and may be lawful for any defendant who shall have put in and perfected special bail in any cause upon motion to the Court in which the action is brought if the Court shall so think fit to deposit and pay into Court the sum which would have been deposited and paid in case the defendant had originally elected so to do together with such further sum to answer the costs as the Court may direct to abide the event of the said suit and to be disposed of in manner aforesaid and thereupon it shall be lawful for the said Court to direct a common appearance to be entered or common bail to be filed for the defendant and an exoneretur to be entered upon the bail piece in the said cause.

plaintiffs in default of appearance of defendants to enter a common 5. And whereas the provisions in the said Acts authorizing	appearance or file common bail as therein directed are not deemed to
extend to proceedings by original and other writs whereupon no capias is issued and it is expedient to extend the provisions of the said former Acts to such proceedings be it further enacted That in all cases where the plaintiff or plaintiffs shall proceed by original or other writ and summons or attachment thereupon or by subpoena and attach­ ment thereupon in any action at law against any person or persons not having privilege of Parliament no writ of distringas shall issue for default of appearance but the defendant or defendants shall be served personally with the summons or attachment at the foot of which shall be written a notice informing the defendant or defendants of the intent and meaning of such service to the effect following—
" C. D. [naming the defendant] you are served with this process at " the suit of A. B. [naming the plaintiff or plaintiffs] to the intent " that you may appear by your attorney in His Majesty's Court " o f at Westminster at the return hereof being " the day of in order to your defence in " this action and take notice that in default of your appearance

" the

" the said A. B. will cause an appearance to be entered for you and " proceed thereon as if you had yourself appeared by your attorney." But in case it shall be made appear to the satisfaction of the Court or in the vacation of any Judge of the Court from which such process shall issue or into which the same shall be returnable that the de­ fendant or defendants could not be personally served with such sum­ mons or attachment and that such process had been duly executed at the dwelling-house or place of abode of such defendant or defendants and then it shall and may be lawful for the plaintiff or plaintiffs by leave of the Court or order of such Judge as aforesaid to sue out a writ of distringas to compel the appearance of such defendant or defendants and that at the time of the execution of such writ of distringas there shall be served on the defendant or defendants by the officer executing such writ if he she or they can be met with and if he she or they cannot then be met with there shall be left at his her or their dwelling-house or other place where such distringas shall be executed a written notice in the following form—

" I N the Court of [specifying the Court in which " the suit shall be depending] between A. B. plaintiff and C. I). " defendant [naming the parties] Take notice that I have this day " distrained upon your goods and chattels for the sum of forty " shillings in consequence of your not having appeared by your " attorney in the said Court at the return of a writ of

" returnable there on the day of and " that in default of your appearing to the present writ of distringas

" at the return thereof being the day of

" the said A. B. will cause an appearance to be entered for you and

" proceed thereon as if you had yourself appeared by your attorney.

" B. F. [the name of the Sheriff's Officer.]

" To C. D. the above-named defendant."

And if such defendant or defendants shall not appear at the return of such original or other writ or of such distringas as the case may be or within eight days after the return thereof in such case it shall and may be lawful to and for the plaintiff or plaintiffs upon affidavit being made and filed in the proper Court of the personal service of such sum­ mons or attachment and notice written on the foot thereof as aforesaid or of the due execution of such distringas and of the service of such notice as is hereby directed on the execution of such distringas as the case may be to enter a common appearance for the defendant or	defendants and to proceed thereon as if such defendant or defendants
had entered his her or their appearance any law or usage to the
contrary notwithstanding and that such affidavit or affidavits may be made before any Judge or Commissioner of the Court out of or into which such writ shall issue or be returnable authorized to take affi­ davits in such Court or else before the proper officer for entering com­ mon appearances in such Court or his lawful deputy and which affidavit is hereby directed to be filed gratis.
6. And be it further enacted That all and every the provisions contained in the said Act of the nineteenth year of the reign of His late Majesty King George the Third respecting actions in inferior Courts where the cause of action should amount to less than ten pounds shall be and the same are hereby from and after the said first day of August extended to all actions in such Courts where the cause of action shall not amount to twenty pounds exclusive of all costs charges and expenses as aforesaid and that so much of any Act or Acts heretofore passed for the recovery of debts within certain districts and jurisdictions which may have authorized the arrest and imprison­ ment of defendants when the cause of action amounts to less than

twenty

twenty pounds exclusive of such costs charges and expenses as aforesaid shall he and the same is hereby from and after the said first day of August repealed.

7. And whereas the holding to special bail persons inhabiting within the Principality of Wales or Counties Palatine by process out of the Courts of Record at Westminster in debts of small amount is oppressive and vexatious and the remedy intended for prevention thereof by an Act passed in the eleventh and twelfth years of the reign of King William the Third intituled " An Act for preventing of "frivolous and vexatious Suits in the Principality of Wales and the " Counties Palatine " ought to be amended and extended be it enacted That no Sheriff or other officer w i t h i n the said Principality or the Counties Palatine of Chester Lancaster or Durham shall upon any mesne process issuing out of any of His Majesty's Courts of Record at Westminster after the said first day of August arrest or hold any person to special bail unless such process shall be duly marked and indorsed for bail in a sum not less than fifty pounds.

8. And whereas arrests of the person have in many instances been made under writs sued out by persons not being attornies or solicitors and whose places of residence have been unknown and the practice has been found to be productive of oppression and vexation be it enacted That from and after the said first day of August next no Sheriff Under Sheriff or other officer having the execution of process shall grant any warrant for the arrest of or shall arrest the person of any defendant upon any writ or process issued by any plaintiff in his own person unless the same writ shall at or before the time of granting such warrant or of making such arrest be delivered to such Sheriff Under Sheriff or other officer having the execution of process by some attorney of one of the Courts of Record at Westminster or of the Courts of Great Sessions in Wales or of the Courts of the Counties Palatine of Lancaster or Durham or of the Court out of which the said writ shall have issued or by the clerk of such attorney or an agent authorized by such attorney in writing and unless the said writ shall be indorsed by such attorney or his clerk or such agent as aforesaid in the presence of such Sheriff Under Sheriff or other officer having the execution of process with the name and place of abode of such attorney.

9. And be it further enacted That all warrants granted and all arrests of the person made contrary to the provisions of this Act	shall be altogether illegal and void Provided always that nothing
herein contained shall extend to any writ or process sued out by any attorney solicitor clerk of court or other officer of any court having authority to sue out process in his own name.
10. Provided always That nothing herein contained shall extend to those parts of the United Kingdom called Scotland and Ireland.

No. I I I .