Forfeiture for Treason, and c, Abolition Act 1874 (SA)

ANNO TRICESIMO SEPTIMO ET TRICESIMO OCTAVO

VICTORIB REGINB.

A. D. 1874.

No. 25.

Aa Act to abolish 3orfeitw-es for Treason and Felony, and to otherwi.se

amend the Law relating thereto.

[Reserved, 6th November, 1874.1

HEREAS it is expedient to abolish the forfeiture of lands and fieamble.

W goods for treason and felony, and to otherwise amend the law ;e&I~g: t ' $ ; 38

relating thereto-Be it therefore enacted by the Governor of the Province of South Australia, with the advice and consent of the Legislative Council and House of Asxmbly of the said Province, in this present Parliament assembled, as follows:

1. .From and after the passing of this Act, no confession, verdict, ForfeitumabOILhed.

inquest, conviction, or judgment of or for any treason or felony committed within the said Province, shall cause any attainder or any forfeiture or eschea,t.

2. If any person hereafter convicted of treason or felony, for Gonviction to dis- qualify for offiae.

which he shall be sentenced to death, or to any term of imprisonment exceeding twelve months, with hard labor, shall, at the time of such conviction, hold any civil office under the Crown, or other public employment, or bc entitled to any superannuation allowance, payable by the public or out of any public fund, such office or employment shall forthwith become vacant, and such superannuation allowance or emolument shall forthwith determine and cease to be payable, unless such pel*son shall receive a free pardon from Her Majesty, or the Governor on behalf of Her Majesty; and such person shall become, and (until he shall have suffered the punishment as by competent authority may be substi-

QQ tuted

37" & 38" VICTORTB, No. 25.

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Treason and Felony Fwfeikre Act.-1874. ". U - a

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tuted for the same, or shall receive a free pardon from Her Majesty, or the Governor on behalf of Her Majesty) shall continue thence- forth, incapable of holding any civil office under the Crown, or other public employment.

Persons convicted

may be condemnod in	3. I t shall be lawful for any Court by which judgment shall be pronounced or recorded, upbn the conviction uf any person for treason or felony, in addition to such sentence as may otherwise
crosts.
by law be passed, to condemn such person to the payment of the
whole or any part of the costs or expenses incurred in and about the prosecution and conviction for the offence of which he shall be co~ivicted, if to such Court it shall seem fit so to do; and the payment of such costs and expenses, or any part thereof, may be ordered by the Court to be made out of any moneys taken fiom such person on his apprehension, or may be enforccd at the instance of a n y person liable to pay, or wlw may have paid thc same, in such and the same manner (subject to the provisions of this Act) as the payment of any costs ordered to bc paid by the judgment or ordcr of any Court of corr~petcrit jurisdiction in any civil action or proceeding may for the time being be enforced: Provided, that in the meantime and until the recovery of such costs and expenses from the person SO convi~tc~l as tzforcsald, or from his estate, the same shall be paid and provided for in the same manner as if this Act had not been passed, and any money which may be recovered in respect thereof from the person so convicted, or from his estate, shall be applicable to the reimbursement of any person or fund by whom or out of which such costs arid .expenses may have been paid or defrayed.

C o ~ e n s a G o n t o	pere	4. I t shall be lawful ic~r any such Court as afmesaid, if it shall think fit, upon the applicatio~i of any puson apgricvcd, and imme- diately after tlic conviction of any pcrson for felony, to award any gum of money by way of' sat.isfaction for any loss of property suffered
sonr injured.
by the applicant through or by means of such felony, and the
amount awarcled for such satisfaction or compensation shall be
deemed a jutlgn:ent debt due to the yereon entitled to receive. the same fiom the person so coavicted, and the order for payment of
such amount may be enforced in such and the same manner as in thc case of any costs ordered by thc Court to be paid under the last preceding section of this Act.

16Forfeikure" defined. 5. The word forfeiture " in the construction of this Act shall

not include any fine or penalty imposed on any convict by virtue of

his sentence.

Conyict" defined.	6. The expression " convict," as herein used, shall be deemed to mean any person against whom, after tb-e passing of this Act, judg- ment of death, Gr of imprisonment with hard labor, shall have been pronounced or recorded by any Court of competent jurisdiction in
the said Province, upon any charge of treason or felony.

7.' When

(317" & 38" VICTORIB, No. 25.

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Treason and Felony Brfki ture Act.--1814.

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7. When any convict s l d l die or be adjudicated insolvent, or shall have suffered any punishment to which sentellcc of' death if pro-

When convict shall

cease to be subject to

Act.

nounced or recorciecl against him may be lawfrdly c.oinrnu l d, or shall have uaclergcne the f'ull term of imprisonrnc~it with hard lttbor. for which judgment shall have been prolioullcetl or rccorrlcld against him, or such othcr punislmcnt, as muv by compctcnt ttutho~ity h a w been substituted fbr such fir11 term, or shall have received ficm Her Majesty, or the Governor on behalf of Her ill;jj~sty, :I partlon for

the treason or felony of which he may hnve Iwcn convictctl, he sllnll

thenceforth, so far as relates to the provisions Elcrtiinufier contained,

cease to be subject to the operation of this Llct.

8. No action at law or suit in equity for the recovery of any property, debt, or damage whatsoew~,, shall be brought hy anv con- vict against any person during thc time while he shall bc subject to the operation of this A c t; and evcry convict shall be incapable, during such time as aforesaid, of alienating or charging any property,

&c.

Convict not to sue,

or of making any coutract, save as hc~ci~mf'tet- provided.

9. It shall be lawful for the Govclbnor, either generally or with reference to ally particular case, to conimit tlic custo<ly and manage-	point Curator of any
TheGnvernor may ap-
convict's property.
ment of the propcrty of' an\- convict t lu~ing the Ciovernor's pleasure
to a Camtor, to be by $riting appoin td iu that twhalf, and
every such ~ppo in tn~cn t nlay bc rc~vokcd by the samc or thc like anthoritp by which it, is made, itnd npon anv deteimination thereof, eithcr b y rcvocaticrn tllcreof or by the clcat11 of any such Curator, a new Curator rnay be appointed by the sanw or the like authority from time tc tinrc,&d rvciy snrh nekCrlriltor shall upon his appointment bp and he derrnetl to be the srmcessov in law of thc forrncr Curator; and all propcrty wstcd in, ancl all powcrs given to such former Curator by virtue of this iict, s l d l thereupon devolve to and become vested in such successor, who shall bc bound by all acts la~vf~rlly done by such former Curator during the con- tinuance of his office; and the p~ovisions hereinafter contained with reference to any Curate-* shd l, 111 the case of the appintrlient of
more than one person, apvlv to such Curators jointly; and upon the	appointment of any such Chrator in mannzr aforesaid, all the real

and personal property, including clloses in actions to which the con-

vict named in such appointment was at the time of his conviction, Convict'tr property to

or shall afterwards while he sllall continue subject to the operations of .,,t in c,,,to, on hi#

this. k t, becomc or be entitled, shall Fe vc3tcd ill such Caratm for a~paintment-

all thc cstatc and interest of such convict therein, and all deeds,

conveyances, and assigni~ients of such convict's property which would but for this Act be void against tlie Crown, shall be void against such Curator, save as hereinafter provjded.

any person on his behalf, before his conviction, as tllu casc may be, protected. 10. 1411 ynymeiits really and bon(j)Xe made by any convict, or by Certain transactione

to any creditor of S U C ~ convict, a d all paynients really ancl boliB

Jide made to any cmvict before his conviction, and all conveymces,

deeds. and assignments, by any convict bond$& made 2nd elccutcd

before

37" & 38" VICTORIB, No. 25.

Treason and Felony Fo~;fcituw Act.-1874.

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before such conviction, petitions, and all contracts, dealings, and

transactions by and with any convict really and bond $de entered

into before conviction shall be deemed valid.

Remuneration of

Curator. 11. The Curator shall be entitled to the like remuneration in

respect of his administration of' the property of a convict as that to which the Curator of Intestate Estates is now or may bc hereafter entitled in respect of the administration of the intestate estates of deceased persons in the said Province; and he may receive

and retain for his own benefit such remuneration accordingly, and

may apply to the Supreme Court for judicial advice in like manner and with the same protection in acting thereupon as trustees may now apply and be protected.

Powercl of Curator.

12. The Curator shall have absolute power to let, mortgaqe, sell, convey, and transfer any part of such property as to him shdl seem fit, and also to carry into effect any bond Jde contract or agreement lawfully made by or with arry convict before his con- viction.

Curator to pay costa

of prosecuticn.

13. I t shall he lawful for the Chator to pay or cause to bc paid out of such property, or the proceeds thereof, all costs and expenses which the convict mav hrkve been condemned to pay; and also all costs, charges and ex&nses incurred by such convict in and about his defence; and also all such costs, charges, and expenses as the Curator may incur or be put to in or about the same.

Curator may pay

debts of convict.

14. The Curator may cause payment or satisfiction whether in full or pro mtu, to be made out of such property of any debt or liability of such convict which may be established in due course of law, or may otherwise be proved to his satisfaction, and may also cause any ;zoperty whjch may come to his hands to be delivered to

any person claiming to be justly entitled thereto, upon the right of

such person being established in due course of law, or otherwise to

his satisfaction.

Curator may make

compensation to

13. Tlie Curator may, with consent of a Judge of the Supreme Court, cause to be paid or satisfied out of such property such sum of money by way of satisfxtion or compensation f x any loss of property or other injury allcgccl to haw been sufiered by any person through or by nleans o f any alleged c~iiuinzl ol fraudulent act of such conduct as to him or such Judge shall seem just, although

persons defrauded.

no proof of such alleged criminal or fraudulent act may have been

made in any Court of T,aw or Xquity; and all claims to any such satisf'clction or compensation may be investigated in such manner as the Curator with such consent shall think fit. aad the decision of the Curator thereon shall be binding: Provided always that nothing in this L4ct shall take away or prejudice any right, title, or remedy to which any person alleging himself to have suffered any such loss or injury would have been entitled by law

if this Act had not passed. 16. The

37" & 38" VICTORIB, No. 25.

Treason and Felony Forjkiture Act.-1 874.

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Curator may make

16. The Curator may cause such payments and allowances for the support or maintenanhe of any wife or child, or reputed child of	allowances for upp port
of convict's family.
such convict, or of any other relative or reputed relative of such convict dependant upon him for support as to such Curator shall seem fit to be made from time to time out of such property, or the income thercof.
17, The several powers hereinbefore given to the Curator, or any of them, may be exercised by him where the same is by this Act	priority of payments, Curator'e power arr to
where the same i s re-
required, in such order and course, as to priority of payments, or	called in question.
quired, not to be
otherwise, as he shall think fit; and all contracts of letting or sale, mortgages, conveyances, or transfers of property, bo&
fide made by the Curator, under the powers of this Act,
and all payments, or deliveries over of property, bond Jide made by or under the authority of the Curator, for any of the purposes hereinbefore mentioned, shall be binding; and the propriety thereof, and the sufficiency of the grounds on which the Curator may have exercised his judgment or discretion in respect thereof, shall not be in any manner called in question by such convict, or by any person claiming an interest in such property by virtue of this Act.

18. Subject to the powers and provisions hereinbefore con- g'Oper'"y completion to of aen- On

tained, all such property, and the income thereof, shall be pre- tcnce,pardon, or

served and held in trust by the Curator, and the surplus income

thereof shall be invested and accumulated in such Government

securities as he shall, from time to time, think fit, for the

use and benefit of any convict, and his heirs, or legal personal

representatives, or of such other pcrsons as may be lawfully entitled

thereto, according to the natwe thereof; and the same, and

the possession, administration, and management thereof, shall

revest in, and bc restored to such convict, upon his ceasing

to be subject to the operation of this Act, or in and to his

heirs, or legal personal representatives, or such other persons as may be lawfully entitled thereto; and all the powers and

forth cease and determine, except so far as the continuance thereof	authorities by this Act given to the Curator shall from thence-
may be necessary for the care and preservation of such property, or any part thereof, until the same shall be claimed by some person lawfully entitled thereto, or for obtaining payrncnt out of such pro- perty, or of the proceeds thereof, of any liabilities, or any costs, charges, or expenses, for which l~rovision is made by this Act, for which purposes such powers and authorities shall continue to be in force until possessior. of such property shall be delivered up by the Curator to some person being lawfullj entitled thereto.
any property which shall not actually have come to his hands by be liable. 19. The Curator shall not be answerable to any person for Curatorwhennotto
virtue of this Act, nor for any loss or damage which may happen through any mere omission or nonfkasance on his part to any property vested in him by virtue hereof.

20. The

196 37" & 38" VICTORIB, No. 25.

Treason alzd Feloyy Forjieiture Act.-1874.

Curator to receive

costs of suits.	20. The costs as between solicitor and client of every action or suit which may be brought against the Curator with reference to any such property as aforesaid, whether during the time the same shnll'be and continue vested in him under this A'ct or after the same shall cease to be so vested, and all charges and expenses properly incurred by him with reference thereto shall be a first charge upon, and shall be paid out of, such property, unless the Court before wllich such action is tried or such suit is heard shall think fit otherwise to order.
Executimof W g -
menta.	21. All judgments or orders for the payment of money of any Court of Law or Equity agpinst such convict which shall have been duly recovered or made, either before or after his conviction, may be executed against any property of such convict under the care and management of any. Curator as afbresaitl, or in the haads of any person who may have takcn upon himself the possession or management thereof without legal authority, in the same rnanncr as if such property were in the possession or power of such convict; and all such judgments or orders may likewise be executed, according to the practice of the Court, against aily such property which may be vested in the Cnrator under thc a1;thority of this Act.

Proceeding8 be

taken to make Curator	22. 'It shall be competent for (he Attorney-General of the said would be entitled tb ihe personai kstateof such convict, or any share thereof, under the ~ t a t u i e s of Distribution or otherwise, or ibr any person authorized by the sald Attorney-Gcncrd in that behalf, to apply in a sumrrmry way to any Court which (if such convict were dead) would have jurisdiction to entertain a suit for the administrztion of his real or personal estate, to issue a writ of summons, calling u p m the Curator, or on any person who without legal authorits; shall have posscssed himself of any part of the property of such convict, to account for his receipts and payments in respect of the property of' such convict, i n such manner ss such Court shall direct; and it shall bc lawful for such
accountable before	Province, or fbr any person who (if any convict were dead intestate)
property revert;s-
Court thereupon to issue such writ, rule, or other process, and to enforce obedience thereto, and to all judgments, rules, orders,
and proceedings of such Court consequent thereon, in the same manner as in any other case of process lawfully issuing out of such Court, and such Court shall thcreupun have full power, jurisdiction. and authority to take all such accounts, and to make and give all such orders arid directions as t n it shall seem proper or necessary for the purpose of securing, the due and proper care, administration, and management ot the poperty of such convict, and the due and proper application of the same, and of the income thereof', and the accurr~ulation and investment of such balances, if any, as may from time to time remain in the hands of the Curator, or such other person as aforesaid, in respect of such propert,y; and so long as any such proceedings shall be pending in any such Court, the Curator, or other person, as the case may be, shall act in the exercise pf all

powers

37" & 380 VICTORIB, No. 25.

Treason and Felony Forfeiture Act.-1874.

powers vested in him under this Act, or otherwise in all respects

as such Court shall direct.

23. Subject to the provisions of this Act, the Curator and other Curatorandother persons to account

person as aforesaid shall, from and after the time when such convict

shall cease to be subject to the operation of this Act, be accountable reverts.

to such convict for all property of such convict which shall have

been by him possessed or received and not duly administered in the

same manner in which any guardian or trustee is now accountable

to his ward or cestuique trust, but subject nevertheless and without

prejudice to the administration and application of such property

under and according to the powers of this Act.

24. The Curator, in respect of the cxercise of the powers hereby Curator subject to

given to him, shall be and shall bc deemcd to be an officer of the 8uprema cuurt.	jurisdiction o f
Supremc Court, a1;d shall be liable to the summary jurisdiction
thereof, and to be removed for misconduct in his office; and upon any such removal all estate and interest vested in him by virtue hereof shall rest in the Master of the said Court until a new Curator shall be appointed by the Governor in manner hereinbcfore provided.

I reserve this Bill for the signification of Her Majesty's

pleaure thereon.

A. MUSGBAVE, Governor.

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Adelaide : By authority, W. C. Cox, Goverument Printer, North-terrace.