Law Simplification Act 1848 No 23a (NSW)

ANNO DUODECIMO

V I C T O R I A E REGINAE.

No. L

An Act to simplify and alter the Law in some

respects. [20th June, 1848.]

W a l e s wi th t h e advice and consent of t h e Legis la t ive Council thereof W H E R E A S it is expedient to simplify t h e Law in some respects Be i t enacted by H i s Excel lency t h e Governor of N e w South

Tha t t h e th i r ty-second section of an A c t passed in t he fifth year of t h e re ign of H e r present Majesty in t i tu led "An Act for the further

amendment of the Law and for the better advancement of Justice" a n d

t h e e leventh section of an Ac t passed in t h e s ix th year of t he re ign of

H e r said Majes ty in t i tu led " An Act to consolidate and amend the

" Law relating to Courts of Requests and to extend the jurisdiction	of
" such Courts in the County of Cumberland"	a n d t h e twelfth and thi r ­

t een th sections of a n A c t passed in t h e t e n t h year of t he re ign of H e r

said Majesty in t i tu led " An Act to amend the Law respecting the

recovery of Small Debts in all parts of the Colony" shall be and the

same are hereby repealed.

2. A n d be i t enacted That if any plaintiff in a t r ia l before t h e

Sup reme Cour t of t h e said Colony shall obta in a verdict for less t h a n

t e n pounds un l iqu ida ted damages or less t h a n t h i r t y pounds l iquidated

damages or debt and if the pres iding J u d g e on such t r ia l shall certify t h a t t h e cause of act ion was not of sufficient va lue to just i fy a n action in t h e Supreme Cour t t h e plaintiff shall recover no costs.

3. A n d be it enacted That the Cour t or any J u d » e thereof as

t he case m a y be shall have power to amend any notice of mot ion	ru l e
which might have been t aken advan tage of by demurre r .

nisi s u m m o n s wr i t p leading affidavit j u r a t or t i t le of affidavit record precipe or o ther proceeding used before such Cour t or J u d g e in any m a t t e r s t h a t shal l appear to t he said Cour t or J u d g e no t l ikely to mislead the opposite pa r ty on any point essential t o t he mer i t s of t h e case and to award such reasonable costs of such a m e n d m e n t as to t h e said Cour t or J u d g e shall seem meet .

4. A n d whereas it is expedient to abolish t h e power of compul­ sory reference to a rb i t r a t ion Be i t enacted Tha t the e igh teen th n ine­

t e e n t h a n d twen t i e th sections of the said first reci ted Ac t passed in t he fifth year of the re ign of H e r said Majesty shal l be and t h e same are hereby repealed.

5. A n d be it enac ted That so m u c h of the thir ty-f i rs t section of the Ac t last aforesaid as author izes t he Sheriff or t he D e p u t y Sheriff as t h e case m a y be to sell unde r a wr i t of fieri facias any chose in act ion be longing to t he defendant shall be and t h e same is hereby repealed.

6. A n d be it enac ted Tha t any pa r ty in an act ion who shall d e m u r specially shall be res t r ic ted to g rounds of special demur re r	a n d
t h a t no mot ion in arrest of j u d g m e n t	shall be allowed for any defect

7. A n d be it enacted Tha t i t shall be lawful for any plaintiff or defendant on t he record to examine t he adverse p a r t y as a witness Prov ided always t h a t notice shall be given of such examina t ion to the said adverse pa r ty th ree days at least before t he day on which the cause is set down for t r ia l Provided also t h a t in any cross-examinat ion of such witnesses no quest ions shall be allowed to be p u t except such as arise out of t h e examination-in-chief.

8. A n d be it enacted That no peltition except a pet i t ion of course

shall hereafter be necessary in t h e S u p r e m e Cour t in i ts E q u i t y

Ju r i sd ic t ion bu t t ha t t he same relief which has h i the r to been given on

pet i t ion may hencefor th he given on mot ion.
9. A n d be it enacted That it shall be lawful for any person or persons or body or bodies politic or corporate requ i r ing such relief or discovery in E q u i t y as cannot now be obtained wi thou t t h e filing of a bill w h e t h e r or iginal not original or in t he n a t u r e of an original bill instead of filing such bill to apply on affidavit to t he Supreme Cour t s i t t ing in Banco for a ru le nisi cal l ing u p o n t he person or persons or body or bodies politic or corporate who would have been defendant or defen­ dan t s to such bill to shew cause why the said ru le nisi should not be made absolute and it shall be lawful for t he said Cour t if it shall see
tit upon t he g r a n t i n g of t he said rule nisi to make an order for a
common or special injunction or any other in ter locutory order which according to t he pract ice of the said Supreme Cour t in i ts Equ i ty
Ju r i sd ic t ion can now be m a d e be tween the ti l ing of t he hill and the
hear ing of t he cause and fur ther tha t upon mot ion to m a k e the said ru l e nisi absolute it shall be lawful for t he Cour t to m a k e the rule absolu te against all or any of the par t ies or to deal wi th the cause in t h e same m a n n e r as if the said rule nisi had been t he prayer of a Bill concluding with a p rayer for general relief and to m a k e all such decrees and decretal orders and references to the Master the reupon as can now hi; made by tin; said Cour t in its E q u i t y Ju r i sd ic t ion upon a n d after the hear ing of any cause Provided always t ha t it shall he lawful for the said Cour t if it shal l t h i n k fit upon t he mot ion for the said ru le nisi or upon the mot ion to m a k e it absolute or upon mot ion made for t ha t purpose to discharge t he said rule nisi wi th leave to t he pa r ty or part ies who have applied for the same to file a bill or to
enlarge t h e said rule; nisi and to direct evidence to be t aken from the
par t ies and o ther witnesses before t h e Mas te r according to t h e prac t ice of the said Cour t in i ts Equ i t ab l e Jur i sd ic t ion for and aga ins t t h e said
ru le nisi and upon t he coming in of such evidence to deal w i th t he

said ru le in such m a n n e r as to the Court shall seem fit.

10. A n d be i t enacted Tha t it shall be lawful for t h e J udges to m a k e such ru les as may seem to t h e m requis i te for ca r ry ing th is Act or any p a r t thereof in to effect and such ru les from t i m e to t ime to revoke al ter and amend .

11 . whereas i t is expedient tha t the Sheriff by himself or his Bailiffs should have power to sell by publ ic auct ion goods or proper ty of any descript ion t aken in execut ion l ie i t enacted Tha t t he Sheriff of New South "Wales and tin; D e p u t y Sheriff of Po r t Phi l l ip by them­ selves or deput ies shall have power and au thor i ty to sell by publ ic auct ion all goods and other p roper ty of whatever k ind t aken by t h e m

respectively in execut ion wi thout	t ak ing out an Auct ioneer ' s license
a n y t h i n g in an Act passed in the eleventh year of H e r Majesty 's	reign

in t i tu led " An Act to regulate	the licensing	of Auctioneers	and the
collection	of Duties	on Properly	sold by them" to t he cont ra ry not­

wi ths t and ing .

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