Imprisonment on Civil Process Amendment Act of 1874 No 6a (NSW)

No. XI.

An. Act to amend the Law of Arrest and

Impr i sonmen t	on Civil Process.	[2nd
April, 1874.]

by the Queen ' s Mos t Exce l l en t Majesty by and wi th the advice and WH E R E A S the L a w of arres t on Mesne Process and of imprison-m e n t for debt requires amendmen t Be it therefore enacted

consent of the Legislat ive Council and Legislat ive Assembly of N e w South W a l e s in Pa r l i amen t assembled and by the au thor i ty of t he same as follows :—

1. After t he thir ty-first day of March nex t no person shall be arrested unde r t h e A c t for abol ishing ar res t upon Mesne Process ( thi rd

Victoria n u m b e r fifteen) unless t he J u d g e shall have been satisfied by affidavit t h a t t h e appl icat ion for an order to hold to bail has been made wi th in a reasonable t ime after t h e fact of t h e defendant 's in tent ion to abscond or remove as in t he second section of t he said Ac t men- t ioned had come to the knowledge of the plaintiff or m i g h t have become known to h im by reasonable dil igence on his pa r t and unless t h e J u d g e shall also be satisfied by affidavit disclosing the facts con- s t i tu t ing t he g round of t he claim or by evidence on oa th before such J u d g e t h a t such plaintiff has prima facie a good cause of act ion in respect of his claim against t he defendant.

2. W h e r e any seaman shall have absented himself from his ship wi thou t leave for t he bond jide purpose of m a k i n g such an appl icat ion or of commenc ing an act ion at law or ins t i tu t ing any proceeding before Jus t i ces against t he mas te r of such ship or any officer thereof such absence shall no t be punishable ei ther as desertion or absence wi thou t leave and if any mas te r or officer knowing t h a t any seaman is desirous of commenc ing or ins t i tu t ing such an act ion or proceeding shall in any m a n n e r prevent him from going on s h o r e or unreasonably refuse h i m leave of absence for t h a t purpose such master or officer shall be liable to a pena l ty of not less t h a n two nor more t h a n fifty pounds which m a y be recovered in a summary way before any two Jus t i ces of t he Peace; Provided t h a t th is section shal l no t apply to any seaman who has no t asked for leave of absence for t he purposes aforesaid or one of t h e m wi th in seven days after the arr ival of his ship in port or if t h e cause of action or prosecut ion have arisen since her

D arr ival

arr ival t h e n wi th in th ree days after t h e acc ru ing of such cause P r o - vided also t h a t no such absence wi thou t leave shall in any case for t h e purposes of this section exceed twelve hours a t any one t ime .

3 . I n case of t he absence a t any t ime from Sydney of all t h e J u d g e s of t h e Supreme Cour t or of t h e illness of t h e J u d g e r ema in ing in Sydney any order or ru le to arrest or discharge a defendant from arres t unde r t he first reci ted A c t may be m a d e by the Chief Com­ missioner of Inso lven t Es ta tes who shall for t he purposes of t he A c t and in all ma t t e r s re la t ing the re to possess du r ing such absence all the powers of any such J u d g e (subject to appeal to the Supreme Cour t or a J u d g e thereof as hereinafter provided upon such t e rms and wi th in such t ime as t he J u d g e s by Genera l P u l e s shall direct) Provided t h a t immedia te ly before t he s ignature of t h e Chief Commissioner in every such case the re shall be wr i t t en by h i m the words " I n t he absence of t h e J u d g e s " Provided fur ther t h a t no order or rule m a d e u n d e r t h e provisions of th i s Act by t he Chief Commissioner of Inso lvent Es ta tes shall be void or invalid in law b y reason of t h e alleged absence from Sydney of all the J u d g e s or of the alleged illness of t he J u d g e r ema in ing in Sydney no t be ing t r u e in fact b u t such order or rule shall r emain in force and be valid in law unless and un t i l avoided by be ing discharged wi th or wi thou t costs on fresh evidence and on t h e mer i t s by t he said Chief Commissioner or on appeal by mot ion before t h e Supreme Cour t or on summons in Chambers by a J u d g e thereof as t he case may be.

4. No twi th s t and ing the provisions of t h e four teenth section of

t h e A c t e leventh Victoria n u m b e r th i r t een in t i tu led " An Act to amend

the law respecting Defamatory Words and Libel" any person who shall a t any t ime at or after the passing of th i s Ac t have been or be for a period of twelve calendar m o n t h s in t he cus tody of t he Sheriff or of any gaoler or officer in execut ion of any j u d g m e n t obtained under t h e said A c t shall be enti t led to his discharge from such custody and shal l be for thwith discharged theref rom after sequestra t ion of his estate (made a t any t ime whils t he shall have been or be in custody on such execut ion) on t he order of the Chief Commissioner of Insolvent Es ta tes directed to such Sheriff gaoler or officer Provided always t h a t no such Sheriff gaoler or officer shall incur any liabili ty whatsoever in respect of such discharge to any j u d g m e n t creditor or other person for

a n y t h i n g done by h im under this or t he n e x t following section.

5. A n y person now or who m a y hereafter be in t he custody of
any Sheriff gaoler or officer in execut ion of a j u d g m e n t (not being a
j u d g m e n t obtained under t h e said last recited Act ) under any wri t of capias ad satisfaciendum issued out of t h e Supreme or any Dis t r ic t

Cour t or unde r any writ of capias ad respondendum shall upon seques­ t r a t ion of his estate (whether made before or after t he passing of this Act ) in pu r suance of t he provisions in t h a t behalf in t h e A c t or Acts in force for t h e t ime being re la t ing to Insolvency be ent i t led to his d ischarge from such custody on t h e order of t he Chief Commissioner of Insolvent Es ta tes and shall be for thwi th discharged from such custody ei ther absolutely or on such condit ions as t he said Commis­ sioner m a y t h i n k fit to impose Provided t h a t in case such person is

or shall be in such cus tody under any wri t of capias ad satisfaciendum

or capias ad respondendum issued to res t ra in h i m from leaving the Colony under t h e provisions of any enac tmen t in tha t behalf he shall n o t be ent i t led to his discharge unless he shall find secur i ty in such

m a n n e r and to such a m o u n t as shall be ordered by such Commissioner

condi t ioned t h a t he will no t remove .from t h e Colony un t i l h e shall have received his certificate in due course of law under t h e A c t or Ac ts re la t ing to Inso lvency or have been otherwise lawfully released from his insolvency.

6. W h e n any reference or submission to arb i t ra t ion has been or shall be made a rule of t he Supreme . Court no wr i t of a t t a chmen t shall hereafter be issued to enforce paymen t of any money costs or expenses t he reunde r b u t writs of fieri facias or capias ad satis- faciendum and such o ther wr i t s as may be necessary shall be issued by order of t h e Supreme Court or a J u d g e thereof in vacat ion or by t he Chief Commissioner of Insolvent Es ta tes in t he cases specified in section three hereof A n d every such order shall have the force and effect of a J u d g m e n t a t Law or Decree in Equ i ty .

7. I n case of t he absence from Sydney of the P r i m a r y J u d g e

or of all t he J u d g e s of t h e Supreme Cour t or of the i l lness of the J u d g e r ema in ing in Sydney any order for a wr i t ne exeat Colonia may after a Bill filed in t h e Equ i t ab l e Jur isd ic t ion of t h e Supreme Court be m a d e by t h e Chief Commissioner of Insolvent Es ta tes according to t h e powers and jur isdic t ion and subject to t he condit ions hereinbefore provided by the th i rd section hereof as to arres ts in act ions a t Law.

8. The th i r ty-second section of t he Ac t fifth Victor ia n u m b e r

seventeen is hereby repealed.

9. This A c t may be cited as the " I m p r i s o n m e n t on Civil

Process A m e n d m e n t A c t of 1874 . "