Fines and Forfeited Recognizances Recovery Act 1902 (NSW)

Act No. 75, 1902.

An Act to consolidate the Statutes relating to the recovery of fines imposed by Courts of Quarter Sessions, the Sheriff, or Coroners, and of recognizances forfeited before such Courts or before Justices of the Peace. [11th

September, 1902.]

BE it enac ted by t h e K i n g ' s t h e advice a n d consent of t he Legis la t ive Council and Legis la t ive

Mos t Exce l l en t Majesty, by and with,

Assembly of N e w Sou th W a l e s in P a r l i a m e n t assembled, and b y the

au tho r i t y of t he same, as follows :—

1. This A c t m a y be cited as t h e " F ines and Forfei ted Recog­

nizances Recovery Act , 1902 . "

2. (1) The Acts ment ioned in t h e F i r s t Schedule here to are , to

t h e ex t en t the re in expressed, he reby repealed.

(2) Al l orders of a n y Cour t of Q u a r t e r Sessions, and al l

rolls, wr i t s , l ists, processes, levies, securit ies, bonds, r e tu rns , and

discharge war ran t s m a d e or issued u n d e r t h e au thor i ty of any A c t

hereby repealed a n d in force a t t h e t i m e of t he pass ing of th is Act , shal l be deemed to have been m a d e or issued unde r t he au tho r i t y of

th i s Ac t .

(3) Al l persons lawfully in custody a t t h e t ime of t he pass ing

of th is Ac t shall be deemed to be in lawful custody under t he provisions

of th is Act , and m a y be deal t w i th accordingly.

3 . I n th is Act , unless t h e con tex t or sub jec t -mat te r otherwise

indicates or r equ i res ,—

Provided

" Jus t i ce " means a J u s t i c e of t h e Peace.

4. The Clerk of t he Peace shall , after the close of each s i t t ings

; of every Cour t of Q u a r t e r Sessions, en te r on a roll, to be called t he

E s t r e a t	R o l l —
(a)	every forfeited recognizance and fine certified to him as by law provided by a n y J u s t i c e or Coroner, or by t he Sheriff, as h a v i n g been forfeited or imposed wi th in the district for which such Cour t is held ;
(b)	every forfeited recognizance and fine forfeited or imposed by or before such Cour t a t t he s i t t ings t h e n closed ;
(c)	every forfeited recognizance and tine entered in any previous roll which the Cour t has du r ing such sitting's ordered to be inserted in such roll as hereinaf ter provided:

Provided t h a t a recognizance entered in to by any person condi t ioned t h a t h e or some other person shall appear to prosecute or give evidence in any case of felony or misdemeanour , or to answer for a n y common assaul t or to ar t icles of t he peace, and forfeited before a J u s t i c e , shall n o t be en te red on such rol l w i thou t t he wr i t ten order of the Cha i rman

of such Cour t in tha t behalf	h a v i n g been obta ined as in t he n e x t
succeeding section provided.

5. ( 1 ) The Cleric of t h e Peace shall p repare for each s i t t ings of every Cour t of Quar t e r Sessions a list of t he persons hound by recognizance as in t he proviso to the last section ment ioned who have there in made defaul t , g iv ing the; par t icu lars of each case in t he form and to t h e effect set ou t in t he Second Schedule hereto.

( 2 ) The Cleric of the Peace shal l lay such list before t he

Cha i rman , who shall m a k e such order in wr i t i ng as to t he es t rea t ing

or p u t t i n g in process of such recognizances as he t h inks fit.

( 3 ) The Clerk of t h e Peace shall no t en te r on t h e Es t rea t

Roll, or es t reat or p u t in process any such recognizance, w i thou t the

order in wr i t ing of t he Chai rman.

6. (1) The Clerk of t he Peace shall m a k e a copy of t he Es t rea t Roll, and a t t a c h t he same to a wr i t of d is t r ingas and capias or fieri facias and capias in t h e form and to t h e effect set ou t in t he Third Schedule to th is Act , and shall endorse on the said wr i t or copy of the E s t r e a t Roll a s t a t emen t on oath m a d e before any J u s t i c e in t h e form and to t he effect set out in t he F o u r t h Schedule to th i s Act .

( 2 ) The Clerk of t h e Peace shall send the said wri t and copy

of the Es t r ea t Roll so endorsed to the Sheriff wi th in such t ime, not exceeding twen ty -one days, after t h e ad jou rnmen t of t he Cour t as m a y

be fixed by t h e Cour t .

7. (1) The Sheriff shall, under t h e au thor i ty of such wri t ,
proceed fo r thwi th to levy and recover such fines and forfeited

recognizances on t h e goods and chat te ls of t h e persons named in

persons in to cus tody if sufficient goods and chat te l s are not found on	t he copy E s t r e a t Ro l l to wh ich such wr i t is a t tached , or t ake such
which distress can be made .

( 2 ) E v e r y person so t aken shall be lodged in prison, t he re to be

k e p t to abide t he j u d g m e n t of t h e n e x t ensu ing Cour t of Q u a r t e r Sessions.

8. (1) A n y person on whose goods and chat te ls the Sheriff has

been author ised as hereinbefore provided to levy and recover a n y fine or forfeited recognizance m a y give to t h e Sheriff secur i ty for his appearance a t t he nex t s i t t ings of t h e Cour t t h e n and t he r e to abide t he decision of t h e Court , and to pay, if t he decision of the Cour t he aga ins t h im, t he fine or forfeited recognizance, toge ther w i th all such costs a n d expenses as are ordered by the Court to be paid by h im.

( 2 ) U p o n receipt of such securi ty, t he Sheriff shall wi thdraw

from such levy, or if such person is in cus tody shall discharge h i m ou t

of custody. 9.

9. A n y person aggr ieved by t h e forfeiture of any recognizance entered in to for t h e prosecut ion of a n appea l to the Supreme Cour t by way of special case from a de te rmina t ion of a J u s t i c e or Jus t i ces m a y appeal to t h e n e x t Cour t of Q u a r t e r Sessions held neares t to the place where t he informat ion or compla in t was de termined, provided t h a t he gives to t h e Clerk of t he Peace and to t h e respondent five days ' not ice of such appeal .

10. The Sheriff shal l a t t h e opening of each s i t t ings of every

Cour t of Q u a r t e r Sessions lay before t he Cha i rman the copy of the;

Es t r ea t P o l l sent h i m by t h e Clerk of t h e Peace after t h e last

preceding s i t t ings of t he Cour t , as hereinbefore provided, and a r e t u r n showing what has been done in t h e m a t t e r of every fine and forfeited

recognizance appea r ing there in .

11 . The Cha i rman of every Cour t of Q u a r t e r Sessions shal l a t

each s i t t ings of t he Cour t order every fine and forfeited recognizance which, by t he r e t u r n presented to h i m by t h e Sheriff a t such s i t t ings, appears not to have been duly levied or recovered or proper ly accounted for by t h e Sheriff, or discharged by order of t he Cour t as here inaf ter provided or by au thor i ty of t he Governor or o the r officer h a v i n g lawful au thor i ty to remi t or dispense wi th t he enforcement of debts d u e to t h e Crown in N e w Sou th Wales , to be inser ted in t he Es t r ea t P o l l to be prepared by t h e Clerk of t he Peace a t t h e close of such s i t t ings, unless a n d un t i l i t has been ascer ta ined t h a t t h e person in default has no goods or chat te ls on which a levy can be made, and t h a t he canno t be found or lodged in prison.

12. ( 1 ) The C h a i r m a n of every Cour t of Q u a r t e r Sessions shal l

a t each s i t t ing of the Cour t inqu i re in to t h e c i rcumstances of every

case in which a person in defaul t has, since t h e l a s ; preceding s i t t ings

of t he Cour t , been lodged in prison or given securi ty to t h e Sheriff as hereinbefore provided, or given not ice of appea l in t he case and in t h e

m a n n e r hereinbefore provided, a n d m a y —

(a) confirm t h e fine or forfei ture, and if t h e parson, hav ing given docs not appear m a y for thwith issue a wr i t of dis t r ingas and capias or fieri facias and capias agains t such surety or suret ies ;	as such securi ty as aforesaid a bond wi th a sure ty or suret ies ,
(b)	order the discharge of the whole of the forfeited recognizance or fine or of a n y pa r t thereof ;
(c)	order such- costs, charges, and expenses to be paid by either
p a r t y as to t h e Cour t seems jus t a n d reasonable .

( 2 ) Such order shal l be in t h e form or to t h e effect set

ou t in t h e Fifth Schedule to th i s Ac t , and shall be signed by t h e

Clerk of t h e Peace .

( 3 ) Such order shall , to t he ex t en t t h a t i t is a discharge

of t h e forfeited recognizance or fine, be a d ischarge to t he Sheriff on t h e pass ing of his accounts before a n y audi to r or person authorised to

pass the same. 13.

13. (1) For t h e purposes of any inqu i ry provided for in the two last p receding sections, the Cour t may s u m m o n and examine on oath any person as a witness .

( 2 ) Every such examina t ion shall be recorded by t h e Clerk

of the Peace in order t h a t the Sheriff may be chargeable wi th all sums
no t satisfactorily accounted for on t he final pass ing of his accounts .

14. (1) The Sheriff shall keep in his possession all wri ts , wi th t he copies of the; E t rea t P o l l s a t tached thereto , sent h im by the Clerk of the Peace as hereinbefore provided.

( 2 ) Such or iginal wri ts and rolls shall con t inue in force

and be sufficient au thor i ty to t he Sheriff, w i thou t any fu r the r wr i t or roll in respect of t he forfeited recognizances and fines in respect of which they were issued.

( 3 ) The Sheriff shall, on vaca t ing his office, deliver to his

successor all such wri ts and rolls in his possession, t h a t his successor m a y use every means in his power to recover all sums unpaid , and not charged to his predecessor on the passing of his accounts .
15. T h e Clerk of the Peace shall , on or before t h e thir ty-first day of J a n u a r y in each year, m a k e and deliver to the Colonial Treasurer , or a t such o ther t ime and to such other person as t he Governor directs, a dupl ica te , certified unde r his hand , of all such forfeited recognizances and fines as have been conta ined in t he several copies of t he Es t r ea t P o l l s sent to t he Sheriff as hereinbefore provided d u r i n g the year end ing on the th i r ty-f i rs t day of December immedia te ly preceding, in order t h a t t he Sheriff m a y be duly charged with all moneys levied by h im in respect thereof, and tha t all persons ent i t led to any share of such forfeited recognizances or fines m a y be a t l iber ty to claim the same according to law.

16. The Sheriff shall , on or before the thir ty-f i rs t day of J a n u a r y

in each year , make and t r ansmi t to tin; Colonial Treasurer , or a t such o ther t ime and to such o ther person as the Governor directs , a n account

in wr i t i ng con ta in ing—

(a)	the names and addresses of all persons whose forfeited recognizances or fines he has been author ised to levy by v i r tue of any wri t issued to h i m or to any predecessor in office, and
(b)	where such forfeited recognizances or fines have not been levied, t he cause of non -paymen t which shall be fully and
par t icu la r ly stated,

in order t h a t such account may be duly inspected and checked in t he

m a n n e r appoin ted by law.

17. (f) A n y Sheriff or Clerk of the Peace who refuses or
neglec ts to do or per form any act or t h i n g by th is A c t requi red of h im

in t h e m a n n e r there in directed, shall be liable to a penal ty of fifty

pounds . ( 2 )

( 2 ) Such pena l ty m a y be recovered toge ther w i th full costs

of sui t by any person by act ion of debt or on t h e case in a n y Court of

competen t jur isdic t ion.

S C H E D U L E S .

F I R S T S C H E D U L E .

Repeal of Act.

Reference to Act.	Title.	Extent of repeal.
2 Vic. No . 8	An Act for the more effectual recovery of fines and enforcement of forfeited recog­ nizances imposed and entered into by and before Justices of the Peace in New South Wales .	The whole.
45 Vic. No. 4	Justices Appeal Act of 18S1	Section 13.

S E C O N D S C H E D U L E .

Form of List.

LIST of persons bound by recognizances to appear at the Courts hereunder stated, who
have therein made default, laid before the Chairman of the Court of Quarter

Sessions, holden at , in the State of N e w South Wales , on

the day of , and continued by adjournment

until	the	day of	, in the year one thousand nine
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N R T W O C C W A O

T H I R D

T H I R D SCHEDULE.

Writ to Sheriff.

EDWARD, by the Grace of God of the United Kingdom of Great Britain and Ireland,

King, Defender of the Faith.

To the Sheriff of the State of New South Wales—greeting.

You are hereby required and commanded as you regard yourself and. all yours

that of all the goods and chattels of all and singular the persons named in the
copy Estreat Roll to this writ annexed, you cause to be levied all and singular the debts and sums of money upon them severally imposed and charged as by the said copy Estreat Roll appears, so that the money may be ready for payment at the next Court of Quarter Sessions to be paid over in such manner as is or shall be lawfully appointed; and if any of the said several debts cannot be levied by reason of no goods or chattels being to be found belonging to the parties then in all cases that you take the bodies
of the parties refusing to pay the aforesaid debts and lodge them in the proper gaol,
there to await the decision of the next Court of Quarter Sessions unless the parties shall have given sufficient security for their appearance at such Sessions for which you will be held answerable and have you then there this writ. Witness ,

Esquire, Chairman of the Court of Quarter Sessions holden at , in the State

of New South Wales, the day of , in year of our reign.
Clerk of the Peace.

F O U R T H SCHEDULE.

Certificate on oath of Clerk of the Fence.

] , , make oath that this roll is truly and carefully made up and examined, and that all recognizances and fines which were forfeited or imposed and in right and due course of law ought to be levied and paid arc to the best of my knowledge and understanding inserted in the said roll, with the exception of such as are now under reference to the Chairman of the Court of Quarter Sessions upon a list submitted to him by mo according to law and as yet undetermined, and that in the said roll are also contained and expressed all such fines as have been paid to or received by me either in Court or otherwise without any wilful or fraudulent discharge, omission, misnomer, or defect whatever.

So help me God.

F I F T H SCHEDULE.

Form of Order discharging forfeited recognizance or fine.

To the Sheriff of the State of New South Wales.

W H K R E A S hath appeared before the Chairman of the Court of Quarter

Sessions holden at , having forfeited the sum of [here

describe the nature of the fine or forfeiture], and having made it appear to the satisfaction of the said Chairman that he should be relieved from the payment of the said sum of [or if the penalty is mitigated state from part thereof] you arc thereby

required to discharge the said sum of	from the Estreat Roll delivered to
you after the Quarter Sessions held at	on the

day of , for which discharge this warrant

shall be your authority, and shall exonerate you from the said charge on the passing of

your accounts before the proper officer.

By order of the Court,

Clerk of the Peace.

ACT