Small Debts Act 1850 (SA)

No. 6.

OBDINRNCE! enacted bv the Qove~nor of South Austraticr wah th adoice and conred of

the Legislative Council thereof.

Second day of January, One thousand eight hundred and thirty- Ijeven

_-__ - - - -_C

HEREAS it i s expedient to amend the Constitution of the U-2 S

W Courts having jurisdiction in civil demands of small amount, h m b t r,

and in minor criminal matters; BE IT THEREPORE ENACTED, by THE

GOVERNOR OF S O U T ~ AUSTRALIA with the advice and consent of THE

LEGISLATITE COUNCI~, thereof-THAT from and after the corpmence- ment hereof, an Ordinance of the Governor of South Australia, with the advice and conseat of the Legislative Council, passed on the PW'iamXV &l.

geven, " For the Establishment of Courts of General and Quarter and Petty Sessions in His Majesty's Province of South Australia; ''

2 j	1m	And also an Ordinance passed on the seventeenth day of November,
One thousand eight hundred and thirty-seven, "To establish
' G Courts of Resident Magistratcs, to appoint Resident Magistrates, to confer on Justices of the Peace certain powers until such Resi., dent Magistrates bc appointed, to provide for the recovery of small
" debts, and the punishment of certain offcnces within the Province

SO. 18, 1847. v of South Australia ;" And also aq Ordimnce passed on the Twentpsecond day of November, One thousand eight hundred and fortyseven, To remove doubts respectii~g the Jurisdiction of Resi-

Repod of Quarter dent Magistrates ia certain cases," shall be, and the same

sident Magistrates' sesaiooa and of Re- are hereby respectively repealed, save and except so far as relates

Court A C ~ S.	to anything heretoforc lawfully done in purmance thereof; and all proceedings which shall have bear commenced, and shall be still pending, in any Court under the said recited Ordinances, shall be
continued, heard, and determined under the provisions hereof.

I. Constittt+ion and

( ? ! e r $ c?f C o ~ t h 11. AND BE IT ENACTED, that it shall be lawful far the Gover-

($overnor may bp nor, from time to time, as occasion may require, by Proclama-

rrgtute Local Courts, to constitute and establish Local Courts for the recorerv of small 'r0clamati0n tion published in the South Australian Oovernme?zt Gazette,

debts and trial and punishment of minor offences, to bc holden at such times and places throughout the Province, as may be most fit and convenient, and as may be specified it1 such Proclamation, and by such Proclamation to assign to such Courts respectively, either the limited jurisdiction hkrekiy authorised to be exercised by any Special Magistrate done or two Justices of the Peace, or the full jurisdiction and powers conferred by this Ordinance; and like- wise by Proclamation to alter the time or place or manner of holding any such Courts, which Courts respectively shall be, and are hereby declared to be Courts of Record,

S~wial Magiutrab@ IIL AND BE IT ENACTED, that it shall be lawful for Her Majesty,

tu be appointed

from time to time, by commission under the public seal of the Pro-	or for 'the Govcinor in name and on behalf of Her Majesty,
vince, to nominate and appoint during IIer Majesty's pleasure, such and so many Justices of the Peace as may be deemedfit and proper
to be Special Magistrates, with reasonable and sufficient salaries, or without salary, to exercise the powers conferred on them by this Ordinance, and to execute such othcr duties as may be assigned to them respectively.

Clerka and Ofi icq IV. AND BE IT ENACTED, that such Courts shall have such

of Court.	Clerks, Bailiffs, and other ~ in is te r ia l Officers, as shall be neces-
sary for the administration of justice, and the execution of the judgments, prders, and process of such Courts, who shall be appointed

Conrtitution and

appointed and removable by the Governor at pleasure; and shall O$icers of Court&

execute such other duties as shall be assigned to them res$ec-

__C

tively by this Ordinance, or the general Rules and Orders to be

made in pursuance hereof.

V. AND BE IT ENACTED, that no such Clerk or partner of any Clerks not to act as Attorneye or

Clerk shall act as Bailiff; and no Clerk, Bailiff, or other Minis-	Agents.
terial Officer, shall, either by himself or his partner, be directly or indirectly engaged as Attorney or Agent for any party in any pro- ceeding in such Court, under the penalty of Fifty Pounds for every such offence, to be recovered by any person who shall sue for the
same by action of debt or on the case,

VI. AND BE IT EXACTED,	that every such Clerk, Bailiff, or	Officers to give se-
curity for due per-

dhcr Officer who may receive any monies in the execution of his	formitnce of office.
duty shall give security for such sum, and, in such manner and form as the Governor from time to time shall order, for the due perform- nnce of his office, and for the due accounting for and of all monies received by him under this Ordinance, or which he may become liable to pay for any inisbehavior in ofice.

VII. AKD BE IT ENACTED, that every Clerk of Court shall Duties of Clerks

issue all summonses, warrants, and writs of exec;tion, and register	their accountb
all orders, judgments, and procccdirigs of Court, and shall take charge of and keep an account of all Court fees and fines pay- able or paid into Court, and of all monies paid into and out of Court, and shall enter such account in a book belonging to the Court to be kept by him for that purpose, and shall from time to time, mfhensoever
and in such form and manner as he shall be ordered by the Governor,
submit his accounts to be auditcd or scttlcd by thc Auditor-General, and pap over to the Colonial Treasurer, or such other officer as may in that behalf be appointed by the Governor, the monies remaining
in his hands over and above such balance as he shall be allowed to
retain for the current expenditure of the Court, and such Clerk

the Governor. shall execute all such further duties as shall be assigned to him by VIII. AND BE IT ENACTED, that the Governor shall from time Governor tod im& balancv find

to time give such directions us to him shall seem meet for securing monoys to be

the balances and other sums of money in the hands of any officers of oounted for.

any such Court holden under this ordinance, and for ihe dne ac-

cpunting for and application of all such bplpnces and other sums of

money,

IX. AND BE IT ENACTED,	that	in everv case coeni- Jn what cases the
demandS *in which ~owersof the Court

sable under this Ordinance, of civil may be egercised by

plaintiff shdJ seek to revpver no m p than Five POUQ~S, and of a special Magis-

petty

trate alone, of by

two Justices.

C d ~ t q t b

O$ma of Cowrtd. higher or more severe punishment than a fine not exceeding Five	petty offences in reapect of which the Court shall lawfully award no
~ L n d s, or itnprisonmeG not exceeding fourteen days, it sh>ll be
lawful for any Special Magistrate alone, or for any two or more Justices -
of the Peace attending at the prescribed time and place, and in

In what c i w s by	open Court, to exercise the powers of the Court; and in all cases of
any one Justice.	issuing any summons or warrant, taking any information or recog- nisance, or enlarging, continuing, or adjourning any proceedin~a -. '
and in all merely incidental or interlocutory proceedings under this
Ordinance, or any general rule or order, made and confirmed in pursuance thereof, it shall be lawful for any one or more Justices of the Peace, attending at the prescribed time and place, and in open Court, to exercise the powers of such Court.

X, AND BE IT ENACTED, that in all causes and matters,

as well civil as criminal, eognisablc under this Ordinance (other

than such as may be disposed of in manner hereinbefore provided), the trial or hearing and adjudication shall be by and before three Justices of the Peace, of whom one shall be a Special Magistrate,

who shall preside, and in case such Justices cannot agree, the decision of the major part of them shall be taken, entered and xecorded as the judgment of the Court.

PenaltiesonJusticea X. AND BE ET ENACTED. that the Clerk of the Court shall.

not attending and

acting when sum- cause to be summoned, one week before the first day of the

moned. sitting of thc Court, not less than tawo such Justices, being resident

within Ten miles, to attend at the time and place of holding

such Court, by regular rotation, according to a list to be kept

by him for that purpose; and the Justices so attending, shall

with the Special Magistrate during the sittings, or shall each

procure some other Justice, who shall so attend and act: AND if any mch Justice of the Peace, resident within Ten miles of the place of holding the Court, having been so summoned, shall refuse or neglect to attend clad act, or to procure another Justice to attend

and act in his stead, in manner aforesaid, every such Justice

Five Pounds. shall, for every such refusal or neglect, forfeit and pay a penalty of

Exemption. XII. PROVIDED ALWAYS, ANIS B E IT ENACTED, that no Officer

in the service of Her Majesty, or of the Zolonid Government, and no member of the Legislature, during the Legislative Session, shall

be compelled to attend and act in any Court under this Ordinance,

otherwise than, if appointed, as a Special Magistrate.

h d c m XIII. A m BE IT ENACTED, that whenever any such Court shall

XIV. AXD BE LT ENACTED,	that all vleas of personal actions	Definition of the
Civil Jurisdiction of

where the debt or darni~ge 'claimed is &not mire than Thirty the Local Cowta.

Pounds, whether on balance of account or otherwise, may beholden > - '&

m a, Court constituted under this Ordinance, and shall be heard and	\
determined in a summary way, accordil:g to equity and good con- science, and the substantial merits of the case. P n o v r ~ m AIAVAYS, that no such Court s h L 1 v e co~nizmcc of any action of a c t - rnent, or in which the title to a& cdrpoFal or incorporeal here-	--	,	.
dltament or easernedTfrto>ny toil, fniF, market, or franchise shall
be in question, or in which the validity of any devise, bequest, or
limitation, under any will or settlement may be disputed, or for any malicious or for any libcl oi slander, or for crirnind conversation, or for seduction or breach. of promise of ilzarriage.

XV. AND BE IT ENACTED, that on the application of any Suits to ba by

person desirous to bring n suit under this Ordinance, the Clelk of	Plaint,
the Court shall enter in a book to bc kcpt for that purpose in his office, a plaint in writing, stating the names and the h s t known places of abode of the partles, and the substance of thc Plaintiff's

hemand, every one of \;hid1 &nts shall be numbered in every year.

according to the order in which it shall bc entered, and thereupon

a summons, stating the substancc of the action, and bearing the

number of the plaint on the margin thereof, shall be issued accord- ing to such form, and be served on the defendant so manv days

before the day on whiclr the Court s l d l be holder1 at wh&h the cause is to be tried, or bcforc thc day on which appearance

is to be entered, as shall be directed by the X L made for ~

regulating the Practice of the Comrt, as hereinafter provided;

hanncr as shall be specified in the Rules of Practice, shall be and delivery of such summons to the defendant, or in such other deemed good service; and no misnorner or inaccurate description of any person or place in any such plaint or summons, shall vitiate the same, if the person or place be therein described so as to be com- nlonly lmown.

XVI. AND BE IT ENACTED, that the Defendants shall be summoned summons to the

t o the nearest Court, having jurisdiction to thc amount claimed, to *mwt Court*

which the defendant or one of the defendants shall dwell or carry

OQ business at the time of the action brought, or to which the cause

of action arose,

XVII. AND

a n	~; r r i s & t h	XVIZ,	AND BZ	IT E~ACTED.	that it shall not be lawful for
I_Y

Demands not to be	any plaintiff to divide any causebf action for the purpose of bringing
diridd f~ the	two or more suits in any of the said Courts, but any plaintiff having

~ l u ~ 0 ~ 0 f b " ~ g ! ~ e cause of action for more than the sum for which a plaint might Two or more Su~ts. be entered under this Ordinance, may abandon the excess, and

thereupon the plaintiff shall, on proving his ease, recover to an amount hot exceeding the sum competent to be awarded by such

Court; and the judgment of the Court upon such plaint shall be in full discharge of all demands in respect of such cause of action,

and entry of the judgment shall be made accordingly,

Minoamay far XVIII. ARD BE IT RNACTED, that it shall be lawful for any

Wage&	person under the age of twenty one years to prosecute any suit ia any Court holden under this Ordinance, for any sum of money
within the amount competent to be awarded as aforesaid, which
may be due to him for wages or piece-work, or for work as a

.

servant, in the same manner as if he were of full age.

Oasea of partner-	XIX. AND BE IT ENACTED,	that the jurisdiction of the
ship and intestwy.

Courts holden under this Ordinance shall extend to the recoverv of

any demand, not exceeding the amounts respectively hereinbehe

specified, which is the whole or part of the unliquidated bolancc of

a partnership account, or the amount, or part of the amount, of a

distributive share under an intostacv, or of any legacy under a

will.

Exemtor~rnay sue XX. AND BB IT ENACTED, that it shall be lawful for any

and be sued.	executor or administrator to sue and be sued in any Court holden under this Ordinance, in like manner as if he were a party in his
own right; and judgment and execution shall be such as in the like
case would be given or issued in any superior Court.

NO privilege XXI. AND BE IT ENACTED, that no privilege, except as

allowed.	herein excepted, shall be allowed to any person to exempt him from
the jurisdiction of any Court holden uiider this Ordinance.

One of several XXII. AND RE IT ENACTED, that where any plaintiff shall

per80n8 liable may	have any demand recoverable under this Ordinance apins t two or
be sued.	more persons jointly answcrable, it shall be sufficient ~f any of such persons be served with process, and judgment may be obtained and execution issued against the person or persons so served, notwith- standing that others jointly liable may not have been served or sued, or may not be within the jurisdiction of the Court; and evcry such
person against whom judgment shall have been obtained under this
Ordinance, and who shall have satisfied such judgment, shall be m-
titled to demand and recover in the Courts holden under this Or- dinance, oontribution from any other person jointly liable with him.

XXIII. Am

XXIII. AND BE IT ENACTED, that on or before the day or within ~ ~ v ~ J ~ ~ & t m a -

the time named in the summons, or appointed in that behalf, the on

defe~dant shall enter appearance, and on the day appointed for hearing the paint.

the trial or hearing, the plaintiff shall appear, and thereupon the defendant shall be required to appear to answer such plaint; and on answer being made in Court, the Court shall proceed, without further pleadings or formal joinder of issue, to hear and determine

the case.

XXIV. AND BE IT ENACTED, that no evidence s h d be given Noevidencetobe given of any demand

by the plaintiff, on the trial of any such cEse as aforesaid, of any de- that not in

mitnd or cause of action except such as shall be stated in the sum- summons.

mons hereby directed to be issued. C

XXV. AND BE IT ENACTED,

that no defendant in any Court Notices to be given

the Clerkof b e -

holclen under this Ordinance, shall be allowed to set off any debt or cial Defencerr, who

demand claimed or recoverable by him from the plaintiff, or to set aai oommunioste

UP by way of defence and to claim and have the benefit of infancy, the game to the

coverture, or any Statute of Limitations, or of his discharge un- plaintiff.

der any Statute or Law relating to bankrupts or insolvents, or to set up any other such defence as shall be specified by the Rules made in

pursuance hereof for regulating the Practice of the Court, without the conserit of the plaintiff, unless such riotice thereof as shall be directed by the said Rules of Practice shall have bccn a wiven to the Clerk of the Court at the time of entering appear- ance; and in every case in which the Practice of the Court shall require such notice to be given, the Clerk of the Court shall, as soon as conveniently may be after receiving such notice, communi- cate the same to the plaintiff by the post, or by causing the same to

he delivcrcd at his usual place of abode or business; but it shall not

be necessary for thc defendant to prove that such notice was cum- 1

municated to the plaintiff by the Clerk.

XXVI. AND BE IT ENACTED, that the Court may in any case, Snits m a y b e a m

with the consent of both parties to the suit, order the same, with or by arbitration.

withotzt other inatters within the jurisdiction of the Court, in dispute between such parties, to be referred to arbitration to such person or persons, and in such manner and on s ~ ~ c h terms, as the Court shall think reasonable and just; and such reference shall not bc revocable by either party, except by consent of the Court; and the award of the arbitrator or arbitrators, or umpire, shall be entered as the judp ment in the cause, and shall be as binding and effectual to all intents

as if given by the Court: PROYIDEE that the Court may, if it think p,,;,,

fit, on application to it on the first sitting thereof held after the ex- piration of one week after the entry of such award, set aside any such award so given as aforesaid, for unfairness, improper conduct, or obvious mistake of the arbitrators; or may, with the wnsent of both

partia

parties aforesaid, revoke the reference, or order another reference to

be made in the manncr aforesaid.

Proceedings when

plaintiff does not XXVII. AND BE IT ENACTF~D, that if upon the day of the

wpe=	return of any summons, or at any continuation or adjournment of the said Court, or of the cause for which the said summons shall have been issGed, the plaintiff sllall not appear either in person or by some person duly authorised in his behalf, in co11fomity here- with, or appealing, shall not make proof of his claim or demand to the satisfaction of the said C O ~, it shall be lawful for the said Court, if it shall think fit (whcn the defendant personally, or by some one duly authorised on his behalf, shall appear, and shall not admit the claim or demand), to award to the defendant, by way of costs and satisfdction for his trouble and attcnrlancc, sun1 sum as the Court in its discretion sllall think fit; and such sun1 shall be reco- verable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same Court can be recovered:
Proviso.	P R O V ~ E D ALWAYS, that if the plaintiff shall nut appear when called
upon, and trhe defendant, or some one duly authorised on his behalf
as aforesaid, appear and admit the cause of action to the f ~ d l amount claimed, or a part thereof, and pay the fees in the first instance pay-
able by the plaintiff, the Court may, if it sllall think fit, proceed to
give judgment aceonling to such adn~ission.

Proceedings if no XXVIII. A m H E IT ENACTED, that if an appearance shall not

appearance en-	be entered for the Defendant on or befo~e	tllc day named in the
tered.

summons, or within such time a s shall be appointed in that behalf,

the Plaintiff may, (upon due proof of the service of the summons,)

sign judgment, and proceed to cxecution thereon forthwith, according to such manner of proceeding as shall be appointed by any General

Rules in pursuance hereof: And after appearance entered, if the

Defendant shall not appear in Court at the calling of the cause,

Proceeding8 if either personally, or by some one on his behalf, or shall ncglcct to

defendant due8 not

* appear.

answer the claim or demand, the Court may, upon due proof ofb

the service of the summoris, proceed to the trial or hearing of the cause on the part of the plaintiff onlv, and the judgment

thereon shall be as vdid as if both parties had'nttmded: PHOVXDED subsequent sitting of the Court, or otherwise, set aside any judg- ment given in the absence of the defendant, and the execution thereupon, and may grant a new trial or hearing of thc cause, upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms RS the said Court may think fit, on sufficient cause shown for that purpose.

Court may grant XXIX. AND BE IT ENACTED, that the Court may in any ease

time, make orders for granting time to the plaintiff or defendant to pro-

ceed

. *

ceed in the prosecution or defence of the suit, and also may h	~~~*
time to time continue or adjourn any Court, or the hearing or farther hearing of any cause, in such manner as to the Court may seem
meet,

X X X. AND BE IT ENACTED, that it shall be lawful for the Defendant m s par

defendant in any action brought under this Ordinance, within such money into Court*

time as shall be directed by the Rules made for regulating the Prac-

tice of the Court, to pay into Court &h sum of money as he shall think a full satisfaction for the demand of the plaintiff, together with

the costs incurred by the plaintiff up to the time of such payment ;

qnd notice of such payment shall be communicated by the Clerk of Natice d emeh pay-

the Court to the plaintiff by post, or by causing the same to be dee ~ ~ ~ ~ $ ! E * e a w

livcred at his usual place of abode or business; and the said sum of rnoriey shall be paid to the plaintiff, but if he shall elect to pro- ceed, and if the plaintiff shall recover no hrther sum in the action than ehall have been rso paid into Court, the plaintiff shall pay to the defendant the costs incnFred by him in the said action akerkkh pay. ment; and such costs shall be settled by the Conrt, and an order shall thereupon be made by the Court for the payment of such oasts by the plaintiff.

XXXZ. AND BE TT ENACTED, that on the trial or hearing af any Pntiw and o t h c ~

suit, or on any other proceeding under this Ordinance, the parties may be e b d.

thereto, their wives, and all other persons, by consent of parties, or

order of the Court, may be examined either op behalf of the plaintiff

or defendant upon oath, or solemn affirmation, in those cases in which persans are by law allowed to make affirmation instead of

taking on oath, to be administered by the proper officer of the Court.

XXXII. AND BE IT ENACTED, that a11 the costs of any action cwt8 to or-

or proceeding in the Court, not herein otherwise provided for, shall timed or to tp A?

be aid by or apportioned between the parties in such manner as the tion.

the event of the W-

&all abide the event of the action, and execution may issue for

Court shall think fit, and, in default of any specid direction,

the recovery of any such costs iq like wanner as for any debt ad.

judged in the said Court.

XXXIII. Awn BE m ENACTED, th&t evwy order and judgment Jo~&~nenta how f~

of any Court lblden under this Ordinance, except as herein provided,

shall be final and cmdusive between the parties ; but the Court shall have power to nonsuit the plaintiff in every case in which

satisfactory proof shall not be given to the Court, entitling either the ~ ~ ~ ~ t l r i ~

plaintiff or the defendant to the 'udgment of the Court, and &&l1 hearin@.

also in every case whatever have t il e power, if the Court shall think fit,

to order a new trial or hearing to be had, on such t e n n s aa the C m t

W think reawnable, a ~ d iq the xqeantime t~ s?ay the proceedlqp.

XXXIV Ann

f W J u ~ ~ C ~ * -

XXXJV. - AND BB IT ENACTED, that no plaint entered in any

NO action to b Court holden under this Ordinance shall be removed or removable

jnt6 the

Supreme Court but	from the said Court into the Supreme Court by any writ or process,
on certain con-	unless the debt or damages shall exceed Ten Pounds, and then only
dttionr.	on giving notice to t h c Clerk of the Local Court before the timk
l -	appointed for entering appearance, and by leave of a Judge of the Supreme Court in cases which shall appear to' such Judge fit to be tried in the Supreme Court, and upon such terms as to payment of costs, giving security for d e u or costs, or such other terms as he
lshall think fit,

XXXV. AND BE IT ENACTED, that no person shall be entitled

who m y &ppnr

fur parties in

aourr.	to appear for any other party to any proceeding in any of the said Courts, unless he be a Barrister or Attorney of the Snpreme Court, or, by leave of the Court, any other person allowed by the Court to appear instead of such party ; but no Barrister, Attorney, or other person, except by leave of the Court, shall be entitled to be heard to argue any question as Counsel for m y other person in any proceeding in m y Court holden under this Ordinance; and no person not being ~ u c h Barrister or Attorney shall be entitled to have or recover any
sum of money for appearing or acting on behalf of any other person
in the saidcourt; and no such Barrister or Attorney shall be entitled
L	to have or recover therefrom any sum of money, unless the debt or
damage claiimed shall be more than Five Pounds, or to have or re cover more than Ten Shillings for his fees and costs, unless the debt or barnage claimed shall be more than Ten Pounds, or more than at the rate of Five per centum on the amount claimed, in any case within the summary jurisdiction given by this Ordinance; and the expense of employing a Barrister or Attorney either by the plaintiff
or the defendant, shall not be allowed, on taxation of costs, in the
case of a plaintiff where less than Five Pounds is recovered, or in the case of a defendant where less than the like sum is claimed, or in any case, unless by the order of the Court.

XXXVI. AND BE IT ENACTED, that the Court may make orders

camt may

ordem for psment	mncerning the time or times, and by what instalments any debt, or
by insWments*	damages, or costs. for which judgment shall be obtained in the said Court, shall be paid, and all such moneys shall be paid into Court, unless the Court shall otherwise direct.

C- jadgrnexlk. XXXVII. AND BE IT ENACTED, that if there shall be cross

judgments between the parties, execution shall be taken out by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller Burn, and satisfaction for the remainder shall be entered, as well as satis-

L faction on the judgment for the smaller sum, and if both sums shall

be egual, satisfaction shell be enteted upon both judgments.

:. XXXVIII. AND

XXXVIII. AND BE IT E ~ a c r e ~, that whenever the Court shall &it Jurisdictriwc. -

have made an order for the payment of moneys, the amount shall	Court mtq awwd
be recoverable, in case of default or failure of payment thereof	execution against
forthwith, or at the time or times and in the manner thereby directed,	gsoda.
by execution against the goods and chattels of the party against whom such order shall be made; and the Clerk of the said Court, at the request of the phrty prosecuting such order, shall issue a writ of Fieri Facias as a warrant of execution to the bailiff of the Court, who by such warrant shall be empowered to levy or cause to
be levied, by distress and sale of the goods and chattels of such party,
such sum of money as ghall be so ordered, wheresoever they may be found, and also the costs of thc execution; and all constables and other peaee officers within their several jurisdictions, shall aid in thc execution of every such warrant.

XXXLX, AND BE LT ENACTED, that if the Court shall have Execution not to

made any order for payment of any sum of money by instalments,	issue till after
execution upon such order shall not issue against the party until	default in payment
of some instalment,

after default in payment of some instalment according to such order, and then it may issue for the whole

and executior.. or successive executions may then issue for the whole

sum due.

of the said sum of money and costs thcn remaining unpaid, or for

such portion thereof as the Court shall order, either at -the time of

making the original order, or at every subsequent time.

XL. AND BE IT ENACTEE, that every bailiff or officer execu- Whatgoods be

ting any process of execution issuing out of the said Courts takeninexecution~

against the goods and chattels of any person may, by virtue thereof, seize and take any of the goods and chattels of such person (excepting the wearing apparel and bedding of such person or his family, and the tools and implements of his trade, to the value of Five

Pounds, which shall to that extent be protected from such seizure),

and may also seize and take any money or bank notes (whether of

the Bank of England or of any other bank), and any cheques, bills

money, belonging to such person against whom any such execution	of exchange, promissory notes, bonds, s~ecialties, or securities for
shall have issued as aforesaid.

XLI, AND BE IT ENACTED, that the proper officer of Court securities seized to

&all hold any cheques, bills of exchange, promissory notes, special- be held an officer

ties, or other securities for moneys which shall have been so seized	of Court.
or" taken as aforesaid, as a security or securities for the amount directed to be levied by such execution, or so much thereof as shall not have been otherwise levied or raised for the benefit of the plaintiff; and the plaintiff may sue in the name of defendant, or in the name of any person in whose name the defendant might have sued, for the recovery of the sum or sums secured or made payable
thereby, when the time of payment thereof shall have arrived. l

XmI. &D*

~~ - Xw. A m BE m ~ A C ~ E D, that it 6hd be l a m for any

-

havbpl + Party who has &ttlhed any watisfied judgment or order in any

M. e w w h h t Court held by virtue of this Ordinance, or any Ordinance hereby

judgment may ob-

bin s Summons on pepe~ltd, for the payment of any debt or damages or costs, to obtain

dy(ed&aud. S ~ m m w from the ,Court (having jurisdiction to tL

amount claimed), nearest to which any other party shall then dwell or eary on his business, such Summons to be

in such form as shall be directed by the Rules made for regu-

lating the Practice of the Courts herein provided, and to be served personally upon the person to whom it is directed, requiring

him to appear qt such time as shall be directed by the said Rules, to

arlswes B U C ~ things as are named in such Summons; and if he- shall

appea,r in pursuance of such S~~rnn~ans, he may be examined upon

oath touching his E~tate and Effects, and thc manner and circum, stances under which he contracted the debt or incurred the damages or liability which is the subject of the Action in which judgment has been abtabd agaiast him; and as to the means and expectation he then had, and as to the property and means he still hath, of dis, charging the said debt or damages ar liability, and as to the disposal he may have made of any property; and the person obtaining such Summons es af~resaid, and all other Witnesses whom the Court shall think requisite, may be examined upon oath touching $he in- quiries authorised to be made as aforesaid; and the casts of such Gummons and proceedings thereon shall be del.med costs in the

husa

''v XLIII. AND BB n ENACT&, that if the prty so summoned

fraud, %c.

$hall not attend as required by such summons, and shall not allege sofficient excuse for not attending, or shall, if attending, refuse to be @worn, or to disclose any of the tthngs aforesaid, or if he shall not fnake answer touching the same to the satisfaction of such Court, m - --

if it shall Bppear to-such Court, either by the examination of the party or any other evidence, that ~ u c h party, if a defendant, in in- curring the debt or liability which is the subject of the Action in	whkb judgment has beeu obtained, has obtained credit from the
plaintiff under fplse pretences, or by means of fraud or breach ~f
trust, or has wilfully contracted such debt or liability without having had at the same time a ressonsble expectation of being able, to pay
or discharge the same, or shall have made or ccuused to be mode any
gift, delivery or transfer of m y property, or shall have charged,
xemoved or cancelled the same, with intept to defrayd his Creditors
or any of them, or if it shall appear to the satisfactipn of tL Court
that the eaid party so somtnoned has then, or has had since the judgment obtained againat him, ~~ff ic ient means 4 ability to py
the debt or damages or oosts 80 ,orcovered agaimt him eitha
d?,ogether or by any instalment or instalments which the hurt in which the judgmept ww obtained 5hau have so ordered, or as - *

. -

.

m

shall be ordered pursuant to the power hereinafter provided, it shall be lawful for such Court, if such Court shall think fit, to order that any such party may be committed to the nearest Common Gaol or House of Correction to the place in which the party summoned is resident, or to any Prison which shall be provided as the prison of the Court, for any period not exceeding forty days.

XLIV.	- 4 w ~	BE IT ENACTED,	that it shall be lawful for any	Power of Could to
rescind or alter

Court before whom such Summons shall be heard, i f the Court shall	Orders.
think fit, whether or not it shall rnalre any Order for the committal
of the defendant, to rescind or alter any Order that shall have been
previously made against any defendant so summoned before such Court for the payment by instalment or otherwise of any debt or damages recovered, to make any further or other Order, either for the payment of the whole of such debt or damages and costs forth- with, or by any instalments, or in any other mannor as such Court
may think reasonable and just.

XLV. AND BE IT ENACTED,	that in every case where the	Power to examine
and commit at

defendant in any suit, brought in any such Court, shall have been

hearing of the cause.

personally served with the summons to appcar, or shall personally appear at the trial of the samc, the Court, at the hearing of the cause, or at any adjournment thereof, if judgment shall be given against the defendant, shall have the same power and authority of examining the defendant and the plaintiff and other parties, touch-

ing the several things hereinbefore mentioned, and of committing

the defendant to prison, and of making an order, as the Court might

have and exercise under the provisions hereinbcfore contained, in

case the plaintiff had obtained a summons for that purpose, after the

judgment obtained as hereinbefore mentioned.

Mode of isauing and

XLVI. AND BE IT ENACTED, that ~vhenever any order of com- executing warrants

mitment shall have been made as aforesaid, the Clerk of Court shall	of commitment.
issue a warrant of cominitmeut, undcr the hand of some Justice,
dircctcd to ono of the bailiffs, who by such warrant shall be em-	powered to take the body of the person against whom such order
shall be made; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant; and the gaoler or keeper of wery gaol, house of correct tion, and prison mentioned in any such order, s l d l be bound to re- ceive and keep the defendant therein until discharged under the provisions of this Ordinance, or otherwise by due course of law; and no protection, order, or certificate granted by any Court of Bankruptcy or Insolvency, shall be available to discharge any defen- dant from any commitment under such last-mentioned order.

XLVII. AND BE IT ENACTED,	that no imprisonment under	Imprisonment not
to operate ae a sa-

t,his Ordinance shall in anywise operate as a satisfaction or extin- tisfaction for the

~+k-fi Jwid ia th* guishment of the debt or other cause of action on which a judgment -

has been obtained, or protect the defendant from being mew sum- moned and imprisoned for any new fraud or other default rendering him liable to be imprisoned undcr this Ordinance, or deprive the plaintiff of any right to take out execution against the goods and chattels of the defendant, in the same nlzlnncr as if such imprieon- ment had not taken place.

~owexecution may XLVIII. AND BE IT ENACTED, that in a11 cases where a war-

be lad at a distance

from the Court,

rant of execution shall have issued against the goods and chattels of any party a t a distance from thc Court, or an order for his co rn i t - rnent shdl have been made under this Ordinance, i t shall be lawf~d for the Court to issue such warrant of cxccution or of commitment to the Bailiff of any other Court constituted under this Ordinance, nearest to the place where such party, or his goods and chattels, shall then be, or be believed to be, requiring execution of the same; and thereupon such last-mentioned Bailiff shall be authorised and required to act in all respects as if the warrant of execution or commitment had been directed to him by the Court of which he is t,he Bailiff, and shall within such time as shall be specified in the Rules of Practice, return to the Court from which the same issued, what he shall have done in the execution of such process; and in case a levy shall have been made, shall, within such time as shall be specified in the Rules of Practice, pay over all moneys received in pursuance of the warrant, to the Court from which the same shall haw issued, and where a::y

order of commitment shall have been made and the person apprehcnded, he shall be forthwith conveyed, in custody of the Bailiff or Officer apprehending him, to the neareat gaol or house of correction, and kept thcrc'in for thc time mentioned in the warrant of commitment, unless sooner discharged under the provisions of this Ordinance; and all constables and other peace officers shall be aiding and assisting in the execution of such warrant.

Power to Court to	XLIX. AND BE IT ENACTED,	that if it shall a t any time ap-
suspend execution

in certain cases,	pear to the satisfaction of the Court, by oath or a.ffirmation of any person, or otherwise, that any defendant is unable, from siclincss or
other sufficient cause, to p i a n d discharge the debt or damages re-
covered against him, or any instalment thereof ordered to be paid as aforecaid, it shall be lawful for the Court, in its discretion, to suspend or 8ta.y any judgment, order, or execution given, made, or issued in such action, for such time and on such terms as the Court shall think fit, and so from tinre to time, until i t shall appear by the like proof as aforesaid that such temporary cause of disability has
ceased,

\

Regulating the sale L. AND BE IT ENACTED, that no sale of any gaods which

of gwds in

exccution. shall be taken in execution as aforesaid, sllall be until after the cx-

piration

piration of fivc days at least next following the day on which such gcods shall h a ~ e been so taken, unless such goods be of a perishable nature, or upon the request in writing of the party whose goods shall have been taken; ancl, until such sale, the goods shall be deposited by the Bailiff' in some fit place, or they may remain in the custody of a fit person approved by the Bailiff, to be put in posses- sion by the Bailiff; and no goods taken in execution under this (lldinance shall be sold for the pnrpose of satisfying the warrant of execution, except by auction, or in such other manner as slmll bc authorised by any General Rules in pursuance hereof.

LI. A m m IT ENACTED,	that it shall be lawful for any	Bailiffs may be
authorised to act as

sudl Court, by order, to authorise any of the Bailiff's appointed	Appraisers or
under this Ortlinmce, to act as Appraisem or Auctioneers, for the	Auctioneers.
purpose of valuing or selling any Goods, Chattels, or Effects taken in execution undcr this Ordinance; and the Bailiffs so authorised, may, without other licensc in this behalf, do and perform all the duties sf Appraisers or Auctioneers as the case may be.

LIT. AND m IT ENACTED, that so much of an Act passed in As to thc liability of goods taken iu

the eighth year of the reign of Queen Anne, intituled A n Act for execution under 8.

the better security of Rcuts, and to prevent Frauds committed by Anne, c. 14.

I~andlords may

Tenants," as relates to the liability of goods taken by virtue of any	clniin certai~	rmts
execution, shall not be deemed to apply to goods taken in execu-	in arrear.
tion under the process of any Court holden under this Ordinance; but the landlord of any tenement in which any such goods shall be so taken shall be entitled, by any writing nider his hand or undcr the hand of his agent, to be dclivered to the Bailiff or officer making the levy, whwh writing shall state the terms of holding and the rent papable for the same, to claim any rent in arrear then due to him, not exceeding the rent of four weeks where the tenement is let by the week, and not excccding the rent accruing due in two terms of payment where the tenement is let for any other term less

than a year, and not exceeding in any case the reut accruing due in Bailiffs making

one year; ancl. in case of any such claim being so made, the Bailiff levies niay dist~aiu

or Oficer making the l e ~ y shall levy, as well for the amount of for rcnt and costs.

the rent so claimed, and the costs of such additiond distress, as for

the amount of money and costs for which the warrant of execution issued under this Ordinance, and shall not proceed to sell the same or any part thereof within five days next after such clistress taken;

and if any replevin be made of the goods so taken, such of the goods

shall be solcl under the execution as shall satisfy the rnonev and costs for which the warrant of eltccution issued,"itnd lhc costs of the sale; and the overplus of sut:h sale (if any), and also the resi- due of Ilie goods, shall be returned as in other cases of distress for rent and replevin tfiereof; ancl for every such additional clistress for rcnt i n arrear, the Bailiff of the Court shall be entitled to have,

as

~iaiz	J u ~ i c t i i n. as the costs of the distress,	such	fees as shall be	allowed- ill
-

puxsuance of this Ordinance,

N O e ~ ~ ~ t i o n Ohall LIII. AND BE IT ENACTED, that no judgment or excc~ttion

be rtayed by writ of

orror. shall be stayed, delayed, or reversed, upon or by any writ of error, or supersedeas thereon, to be sued for thc reversing of any judgment given in any Court holden under the provisions of this Ordinance.

Execution to be	LIV. AND BE IT ENACTED,	that in or upon every warrant
superseded on

payment of debt	of execution issued against the goods and chattels 6f my p e r k whomn-
anti costs,	soever, the Clerk of the Court shall cause to be inserted or endorsed
the sum of money and costs adjudged, with the sums allowed by this
Ordinance, as increased costs of execution of such warrant; and if the party against whom such execution shall be issued shall, before an actual sale of the goods and chattels, pay or cause to be paid or tendered unto the Bailiff or other officer holding the warrant of execu. tion, such sum of money and costs as aforesaid, or such part thereof as the person entitled thereto shall agree to accept in full of his debt or damages and costs, togcther with the fees herein directed to be paid, the execution shall be superseded, and the goods and chattels of the said party shall be discbwgcd qnd set at liberty.

LV. AND BE IT ENACTED, that any person imprisoned

Ihbtor to be

discharged from	under this Ordinance, who shall have paid or satisfied the debt or
custody upon	demand, or the instalments thereof payable, and costs remaining
payment of debt	due at the time of the order of imprisonment being made, together
and coata.	with the costs of obtaining such order, and all subsequent costs, shall be discharged out of custody, upon certificate of such payment or satisfaction signed by the Bailiff or other officer aforesaid to the C~urt which the Order of imprisonment was made.

C1aim8a9tog0da	LVT. AND BE IT ENACTED,	that if any claim shall be made
takeu in execution

to 6e djudicated in	Or in respect of any goods or chattels taken in execution under person not being the party against whom such process has isseeit;
c;lour~	the process of any Court holden under this Ordinance, or in respect of the proceeds or value thereof, by any landlord for rent, or by any
it shall be lawful for the Clerk of the Court, upon application of the officer charged with the execution of such process, as well before as after any action brought against such officer, to issue a summons calling before the said Court as well the party issuing such process as the party making such alairn, and thereupon any action which shall have been brought in the Supreme or any other Court
in respect of such claim, shall be stayed, and the Court in which
-.a such action shall have been brought, on proof of the issue of such aummons, and that the goods and chattels were so taken in execution, may order the party bringing s u ~ h action to pay the costs of the proceedings had upon such action after the issue of such summons,

and

e

d

and the Court issuing such summons shall adjudicate upon such JU~whbn.

*

claim, and make such order between the parties in respect	-
thereof, and of the costs of the proceedings, as to such Court shall seem fit, and such order shall be enforced in like rnapner as any order made in any suit brought in such Court.

LVII. AND BE rT ENACTED, that a11 actions of replevin in Actiona o t n p ~ n

cases of distress for rcnt in arrear or damage faisant which shall ,iWlout	may be brought
be within the amount herein limited, shall and may be brought; without writ in a, Court held under this Ordinance, according to such form and manner of proceeding as shall be regulated by any Genc-
ral Rules of Practice to be made in pmwxmce hereof.

LVIII. AND m IT ENACTED, that in every such action of Plaint81 when to

replevin, the plaint shall be entered in the Court holden under this entered.

Ordinance, nearest to the place where the distress was taken.

LIX. AND BE IT ENACTED, that in case either party to any actiomof

auch action of rcplevin, shall declare to the Court in which such replevin may k

action shall be brought that the title to any corporeal or incorpo~eal removed.

hereditaments is in question, or that the rent or damage in respect

of which the distress shall have been taken, is more than the sum of

Thirty Pounds, and shall become bound, with two sufficient sureties, to be approved by the Clerk of the Court, in such sums as to the Court shall seem reasonable, regard being had to the nature of the claim and the alleged value or amount of the property in dispute, or of the rent or damage, to prosecute the suit, with cffcct and with- out delay, and to prove before the Court by which such suit shall be tried, that such title as aforesaid is in dispute between the parties, or that there was g~ound for believing that the said rent or damage was more than Thirty Pounds, then, and not otherwise, the action may be removed before any Court competent to try the same, in manner prescribed by law,

LX. AND BE IT ENACTED, that all actions and proceedings ConcurrentjuriJic-

i'km before the passing of this Ordinance might have been brought	Supreme
in the Supreme Court, where the plaintiff dwells more than twenty	J-
miles fromfie defendant, or where the p u s e of action did no-

% - w -some - E?kf2%kal ~ o i n t. within the like distance of the

~ourinearest to which the defeidant' dwells or carries on business at

the time of -.. the - action -- b r = or where any officer of t k Court shalrbe a party, except in respect of any claim to any gooda and chattels taken in execution of the process of the Court, or the proceeds or value thereof, may be brought and 'determined in the

Gupreme Court at the electi35-o party su~o 'p rocee$ng, as -

if e e had fiat been pis,","d".

v-- &XI. AMP

18; .L

LXI, .AM as EWACT~, that if aay action shall be

cornmac* at't-er tb passing; af this Ordinam:, in the Su reme

11 Coab fox any cqaw other thau those lastly hereinbefore * spec& e ,

for wwhh B plaint might l~ave been entered in any Court hdden under this Ordinance, aaul a verdict shall be found for the plaintiff for a sum less than might competently liavc been akarded by - xuch

ourt. the ;aid plaintiff shall have judgment to recover such sud! only,

costs; and ifa verdiot shall not be fuud for the plaintift; the d S

f e n t i m m b 5 i&irl&- to his costs asbetween attorney and client,

*Uin either case the Judge who shall try the aause, shall c e r t i

06 ' G a G f t& record that the action was fit to be brought in.

the Supreme Court.

LXTL AND BE IT ENACTED, that t h ~ several Court8 caneti-

tnhd d e s t h i ~ Osilinanw, shall have jurisdictio~ to hear antl

finally detanioe in a summary manner any of the following offences that is to say :-All simple larcenies of property to the value of Five P~unds (not being larcenies of any horse, sheep, or animal of the kind eom~lonly called cattle, and not being by Law punishable

with Txansportation) and all other felonies, having no greater punidmtent assigned by law than such simple larcenies as aforesaid; and also, all misdemeanors and minor offences, except the following,

viz, :-Abductioni indecent awaults m women and children, attempts

to commit xiape, a d unnatural offences, concealment of ehddbirth, compiracy, ernbezeimat, forgery, perjury, and subornation, libel or dwder :-h4 'dlao, except aB such off'ences as by statute are or

&all be declared to be not triable by Court9 of Genaal oc Quarter

Sewium of the Peace in England.

LXIII. Pmvro~a ALWAYS, AND m IT EN.BCTED, that it shall

be lawful for such respective Courts, on conviction for any such

offerne, to punish, h the mse Of any such felony, by imprisonment

not exceeding six calendar months, with or without had labor, and

solitary or separate confinement not exceeding One Month ; and in

tke oaaa of any such misdemeanor, by fine, not exlceediag Twenty	3?ounds and kprissnmeut tiU the same shall be paid, or
by iraprisoamnt not exceding six calendar months, and
n& in say higher or sevexe .manner ; PI~OVIDED ALSO,

in aU came of an h mime oFoEence as afoatesaid,

when it &hall appear trs any m& Court, or to the oommit-

t h g Magistrate, a,t the time of committal, that the case, either becauw of its .aggr.aated Aamcter: or other circumstzlaloes, is such W fo require a, lpuni&w,t exceediw h t which sueh Court

ia cQmpetent 4a ardjadg4, or saoh a9 ought "to be 4riec? before a

Jlrp, it &U be lawful foa svch Court, or fau the committing Magisr-

trate, to commit the prisonez a parky acaused @W +rid befm the

Supremc

Supreme Court, or to remand such prisoner or par@ accused, zxntil IIer Majesty's Attorney or Advocate-General shall have elected,

either to remit such case for the decision of the Local Court, ox to

proceed in some other Uowt of competent jurisdiction.

LXJV. AND SE rr ENACTED, that it shall be lavful for the IV. G'eoteral Pro-

Governor to appoint and authorise any of the Special Mapistrates,

vZ8ions.

not being less than three, nor more than five in number, t'o flame

General Ilrrlea and

Orders of Practice

such General Rulcs and Orders as to them shall seem expedient for

and Proceedings.

and concerning the practice and proceedings of the Courts holden

uader this Ordmance, as well in civil as in criminal rnatkr,., and for

the execution of the Process of the said Courts, and generally for

carrying this Olrdinance into effect ; and the same from time to time

to anaul, vary, and amend: AND the Governor, with the advice of the Executive Council, may approve, or disallow, or alter, or amend

such Rules and Orders, or any of them; and such of the Rules as

shall be so approved, shall forthwith be notifred in the South Am-

trdz'an Goverameni Gazette for public information, and shall

commence and have the force of Law after the expiration of fburteen

days from such publication.

LXV. AND BE IT ENACTED,	that QO defence or objection shall	Nearest Court,
how to be deter-

be allowed to the jurisdiction of any such Court on the ground of its	mined.
not being the nearest C-ourt within the meaning of this Ordinance. unless such defence or objection be stated in Gibing at or befork the time appointed for entering appearance, and th; determination
of the Court on such matter shall be final and conclusive.

LXYI. AND BB IT EXICTED,	that any summons or piwcess	Summmaea may be
serred by any

of the Court not b e e writs of execution, may be served by an) $8

Ccustable of tile I,

Constable of the Pmvinee, or any othcr pei-son authorised by such	Province, &c.
Court, and such service shall be as valid as if the sanc had been made by a Bailiff or Officer of the Court out of which such sum-

~ n o m or other process shall have issued.

LXVII. AND BE IT ENACTED, that service of a q summons or Scrvice of wnmons or otliar

other such process of the Court may be proved by zffidauit purporting	process may be
to be sworn before any Magistrate of the Province; and if such a%	prored by affidavit
davit purport to be signed by the lustice; by or before w b m the	bofore a Magi&rate.
same purports to be taken, ik shall be suffi;cient esiknce of seruk
without further p o o E

LXVLIL AND BE IT ENACTED, that every person w b ang PelSsons giving fdaa I

examination upon oath or $ ~ h n affirmation before any Cam% shall evidence guilty of

wilfully and corruptly give false evidence, or who before m y Magi% perj my.

trate acting in pursuance of this Ordinance shall wilfully make any	\
false aadavit or statemeat an aath m affunation, shall be gmilty of	I 'I

P@j ur y.

LXIX. AND	4
i
.13

LXIX. AND BE IT ENACTED, that any party to a proceeding

under this Ordinance may obtain, at the office of the Clerk of the Court, summonses to witnesses, with or without B a clause requiring the production of books, deeds, papers, and writings in their posses, slan or control, and in snch summons any number of names may be inserted, and such summons may be served by any person on behalf of the party taking out the same, and such service may

be proved in manner aforesaid.

LXX. AND BE IT ENACTED, that every person on whom any

such summons shall have been served, either personally or in such other manner as shall be directed by the General Rules of Practice of the Courts, and to whom at the same time payment or a tender of payment of his expenses shall have been made on such scale of al- lowance as shall from time to time be settled by the General Rules of Practice of the Court, and who shall refuse or neglect, without suffi- cient cause, to appear, or to produce m y books, papers or writings required by such summons to be produced, and also every person p&- sent in Court who shall be required to give evidence and who shall refuse to be sworn and give evidence, shall forfeit and pay snch fine, not exceeding Ten Pounds, as the Court shall set on him; and the whole or any part of such fine, in the discretion of the Court, after deducting the costs (if any) shall be applicable toward indemnifying the party injured by such "refusal or neglect, and the remainder thereof shall form part of the general fund of the Court in which

the fine was imposed.

Fhea how to ba	]CXXI, AND BE IT ENACTED,	that pavment of any fine im-
enforced and

uwxintod for. posed by any Court under the authority of this Ordinance, may be enforced upon the order of the Court in like manner as payment of any debt adjudged in the said Court, and shall be accounted for as herein provided.

Mioutes of pro- LXXII. AND BE IT ENACTED, that the Clerk of every Court

csedinge to kept,

holden under this Ordipance shall cause a note of all plaints and summonses, and of all orders, and of all judgments, and executions, and returng thereto, and of all informatiops, sentences, and other proceedings of the Courts to be fairly entered from time to timc in books belonging to the Cokrt, which shall be kept at the office of the Court; and such entries in the said books, or copies thereof, and pm- porting to be signed and certified as true copies by the Clerk of the Court, shall at all times be admitted in all Courts and places whatso- ever as evidence of such entiies, and of the proceeding referred t o by such tmtry or entries, and of the regularity of such proceeding,

without	.. any further proof.
LXXIII. AND BE IT EN~CTED, that the Clerk or Clerks of

claimed in air yearai

S ~ L L I L be acciluntcd every such Court shall, the month of January in each year,

for and paid to make

-- PTniiiofib.

make out a correct list of all sums of money belonging to suitors in

the Court, which shall have been paid into Court, and which shall Colonial Treasurer.

have remained unclaimed for five yeas before the first day of the

same month of January, specifying the names of the parties for whom or on whose account the same were so paid into Court; and a copy of such list shallbe put up and remain during Court hours in some conspicuous part of the Court-house, and at all times in the Clerk's office, and a l l sums of money which shall have been paid into such Court, to thc use of any suitor or suitars thereof, and which shall have remained unclaimed for the period of six years before the passing of this Ordinance, and which are now in the hands of any Court heretofore existing by virtue of any Ordinance hereby repealed, or officer of such Court, or otherwise held in trust for such suitors, and all further sums of money which shall hereafter be paid into any such Court, to the use of any suitor or suitors thereof, shall, if unclaimed for the period of six years after the same shall have been paid into Court, be paid to n distinct fund, whereof an account shall be kept by the Colonial Treasurer, in such manner as the Governor for the time being shall appoint,

and no person shall bc cntitled to claim any sum which shall have

remained unclaimed for aix years; but no time during which the person entitled to claim such sum shall hare been an infant, or feme covert, or of unsound mind, or beyond the seas, shall be taken into

account in estimating the said period of s i x years.

LXXIV. ABD BE IT ENACTED, that if any person shall wilfully Power of committal

insult the Court, or any Clerk or officer of Court for the time being, 'Or contemPt*

during the sittings or att~ndancc in such Court, or in goin5 or

returning from such Court, or shall wiEully interrupt the proceed~ngs of such Couft, or otherwise misbehave in Court, it shall be lawf~d for any bailiff or officer of the Court, with or without the assistance

of any person, by the order of the Court, to take such offender into custody and detain him until the rising of the Court; and the Conrt

the said Court, to commit any such offender to any prison to v h i c l ~	shall be crnpowered, if such Court shall think fit, by a warrant of	the Court has power to commit offenders under this Ordinance, for
any time not exceeding seven clays, or to impose upon any such
offender a fine not exceeding Five Poulids for every such offence, and in default of payment thereof, to commit the offender
to any such prison aforesaid for any time not kxceeding seven days,
unless the said fine be sooner paid. +

T,XXV. AND BE IT ENACTEX), that if any oWcer OL. bailiff of P,,,IQ, for a ~ ~ ~, t.

any Court holdcn under this Ordinance shall be assaulted while in ing ofKcer3 or

the execution of his duty, or if any rescue shall be made or resc~zing,

attempted to be made of *any goods levied under process of thc Court, the person so offending shall be liable to a fim not exceeding Twenty Pounds, to be recovered by order of the Court, or before

CL

a Justim of the Peace in a summary way ; and it shall be lqwful

for the bailiff of the Court, or for any pmce officer in any such case, to take the ofPender into custody (with or without warrant), and

bring him before such Court or Justice accordingly.

Bail& and officers LXXVI. A m BE IT~ENACTED,

that in case any bailiff of the

m ~ d e answerable for escapes and neglects

said Court, who shall be empowered to levy any execution against

in eaecution,

good8 armd chattels, shall by neglect, ar connivance, or omission, lose the opportunity of levying any such execution, then upon the corn- plaint of the party aggrieved by reason of such neglect, connivance, or omission (and the fact alleged being proved to the satisfaction of the Court on the oath of any credible witness), the Court slldl ordrtr such bailiff to pay such damages as it shall appear that the plaintiff has sustained thereby, not exceeding in any case the sum of money for which the said execution issued, and the bailiff shall be liable thereto; and upon demand made thereof, and on his refusal so to

pay and satisfy the same, payment thereof shall be enforccd by such

ways and means as are herein provided for enforcing a judgnwnt 1

kcovered in the said Court,

Remedies and	LXXVII. AND BE IT ENACTED,	that if any Clerk, bailiff, or
penalties on bailiffs

and other offreers officer of the Court, acting under colour or pretence of the process

$9 n l i ~ c o l l d ~ t ~ of the said Court, shall be charged with extortion, or with not duly

. paying or accounting for any money levied by him under the authority of this Ordinance, or with any misconduct in his officc, it &all be lawful for the Court to enquire into such matter in a sum- mary way, and for that i~urpose to summon and enforce the atteidanie of all necessary in like manner as the attendame

of witnesses in any case may be enforced, and to make such order

thereupon fur the repayment of any money extorted, fl ibr the due

payment of any mouey so levied as aforesaid, and for the payment

of such damages and costs as the Court shall think just; and also, if the Court shall think fit, t~ impose such fine upon the Clerk,, bailiff, or officer, not exceeding Twenty Pourlds for each offence,

money so ordered to be paid, payment of the s m e may be enforced as shall be deemed adequate; and in default of payment of any

by sucb wiiys and means as are herein provided for enforcing a

judgment recovered in the said Court.

Peee in civil and IJXXVIII. AND BE: IT ENACTED, that for and in respect of all

Criminal Pro- Civil Proceedings in the Courts holden under this Ordinance, the

oeedinge. B~hedule and G and several fees specified in the schedule hereto, filial1 be paid to hiof the Clerks or other Officers of Court: and for and in respect *

S 643.	of all Criminal Proceedings, tllo sevrral fees appointed by an Ordi- nance passed on the Eighteenth day of October, One Thousand
Eight Hundred and Forty Three (KO. 4): PROTIDED ALWAYS,
that notwithstanding anytl~ing in the last mentioned Ordinance,
px herein coataisad, it &dl bq lawful for the Goverlior from

time

time to tirne, with the advice of the Executive Council, to regulate,

ox vary, lessen, or increase the fees of Court, or sums in the same

of fees payable on thc proceedings in the Courts holdcn uadep

this Ordinance, to the Clerks, Bailiffs, and other Officers of such Courts, as well in civil as in criminal matters. and such fees

or sums may be so regulated from time to like, by bay of

per centage on the amount of the clernand, or by way of Stamp Duties on the several writs and documents issued, received, or used in relation to any proceedings in the said Courts: and such Governor vith the advice aforesaid may from time to time appoint, instead of all, or any of the fees or sums in the name of fees payable as afore- said, other fees or sums by way of per centage, Stamp Duties, or otherwise, to be payable in relation to such proceedings as aforesaid: A m a Table of all such fees, duties and sums in forcc, and payable for the t<ime bcing, shall be put up and constantly kept openly exhi-

bited daring business hours, in some conspicuous place in each

Court House, and in the Clerk's Offices respectively.

LXXIX. AND BE IT ENACTED, that all fees, fines, penalties,. Appropriation of

and other sums of money, imposed by this Ordinance, shall be paid monies to pl'blio	to the Colonial Treasurer, or such other Officer as shall be appointed. uses.	-
by the Governor, on behalf of Her Majesty, her heirs and successors,
for the public uses of the Province, and support of the Government

thereof; PROVIDED SLWAYS, that it shall be lawful for the Governor, Proviso Governor

from time to time, subject to such regulat.ions as he may deem fit, -to ~,"J,"~~~~~';

allow and declare that the several fees of office, paysble under this fee,

Ordinance7 to the Clerks and other Officers (being first accounted for as hereinhafore required), or any and what proportion thereof, shall

go and be distributed to aud among such Clerks and OEcels res-

pectively, to be applied to their own proper uses, as a renunueration

for their duties, in lieu of or in addition to salary.

LXXX. AND BE IT ENACTED, that every Clerk, bailiff, Or Penaltie8 onoffictm

other officer ernploycd in putting this Ordinance or any of the powers those	taking	allawed,	fees
thereof in execution, who slrilll wilfully and corruptly exact, take, or accept any fee or reward whatsoever, other than and cxcept such
fees as arc or slid1 ba appropriated and nllowed respectively under
this Ordinance, for or on account of anything done or to be done
by virtue hereof, or on any account whatsoever relntire to putting this
Ordinance into execu~ion, shall, upon proof and conviction thcreof	P
before the said Comt, be for ever incapable of serving or being c r n p l o ~ ~ d under this Ordinance in any ofim of profit or emolument,
and s l h l also be liable for damagcs as hercin provided.

IXXXI. AND BE IT ENACTTD, that no proceeding under this Proceedings notin-

Ordilxmce shall be quashed or vacated for want of form. valid for wont of

LXXXII, AND farm.

G t w a I Prwirim8 LXXXII. AND for the protection of persons acting in the exe-

-

Limitatisnu of

cutioa of this Ordinance, BE XT ENACTEP, that all actions and

aationa for pro-

prosecutions against any person for anything done in pursuance of

oeeding in

of this Ordinance.

this Ordinance, shall bc commenced within three calendar months

after the fact committed, and not afterwards, or otherwise: and

notice in writing of sucll action, and of the cause thereof, shhl be

given to the defendant one calendar month at least beforc thc com-

mencement of the action; and no plaintiff shall recover in any such action if tender of sufficent amends shall have been made before such action brought, or if after action brought a sufficient sum of

money shall have been paid into Court, with costs, by or on behalf

of the defendants.

Provisione for the LXXXIII. ARD BE IT ENACTED, that if any person shall bring

protection of officers any suit in the Supreme Court in respect of any grievance committed

of the Court.

by any Clerk, Bailiff, or Officer of any Court holden under this

Ordinance, under color or pretence of the process of t'he said Court, and the jury upon the trial of the action ehall not find greater diirnages for the plaintiff than the sum of Twenty Fomds, no

costs shall be awarded to the plaintiff in such action, rullcss the

Judge shall certify in Court, upon the back of the Record, that the action was fit to be brought in such Supreme Court.

Commenoament. LXXXIV. AND BE IT ENACTED, that this Ordinance shall com-

mence and take effect from and aftclr the first day of May next, cxcept with respect to tllc appointinent of Special Magistrates, and the making of General 'Rules and Orders of Practice and Pro- ceeding, as to which this Ordinance shall cointnence and have effect from and after the passing hereof

Passed the Legislutive Council, this

Tmelfth day of' Illlnrch, One

Thousam2 E$ht Hundred and

* IGjii.

W. L. O'I-XALLORAN,

Clerk of Council.

SCHEDTJLE REFERRED TO.

COUR'l' FEES IN ClVlL PROCEEDINGS.

I Up to 620.1 Above S20.

Entering every Action or Plaint, and issuing every Summons

Serving every Summons, Notice, and Order ...........

Entering an Appearance ............................

Every Search ....................................

Entering Cause for Trial.. ..........................

Trial of Cause and Entering Judgment ................

Order of every description ..........................

Wri t of Execution ..................................

Serving the same ..................................

Summons or Subpcena (any number of witnesses) ........

Subprenaing witnesses (if required) each witness ........

Receiving mid Paying Money out of Court (each entry). . Mileage for Service of &C., per mile, beyond the distance of

onemile .....................................

Every Notice. .....................................

Taxing Costs .......................: ............

Swearing Affidavit ................................

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