Small Debts Ordinance 1863 (WA)

WESTERN AUSTRALIA.

ANNO VICESIMO SEPTIMO

VICTORIA: REGINA:.

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No. XXI.

AN ORDINANCE for the recovery of Small Debts and Demands.

[22nd July, 1863.]

HEREAS it is expedient to facilitate proceedings for the Preamble.

Wenacted by His Excellency The Governor of Western Australia andrecovery of small debts and demands ; Be it therefore

its Dependencies, by and with the advice and consent of the

Legislative Council thereof, as follows:—

1 ON and after the date on which this Ordinance shall come 6 Wm. 4th, No. 2 of 1336,

into operation, the Ordinances of the Governor and Legislative ands Vie., No. 13 of 1812,

Council, 6th William IV., No. 2 of 1836, and the 6th Victoria, No. repealed.

13, of 1842, shall be, and the same are hereby respectively repealed, save and except so far as relates to anything heretofore lawfully done in pursuance thereof; all proceedings which shall have been commenced and shall be still pending in any court under the said recited Ordinances shall be continued, heard, and determined under the provisions hereof, and all records and all papers connected with

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the proceedings of the said courts shall, within three months after the date on which this Ordinance shall come into operation, be deposited with the Registrar of the Supreme Court, and remain in his custody and keeping.

Governor may by notice 2 IT shall be lawful for the Governor from time to time, and at

constitute local courts.	any time by proclamation published in the " Western Australian
Government Gazette," to constitute local courts for the recovery of
small debts and demands, to be holden at such times and places and within such districts throughout the said Colony as may be most fit and convenient, and as may be specified in such pro- clamation, and likewise 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.

Magistrates to be appointed. 3 IT shall be lawful for the Governor from time to time to

nominate and appoint such and so many Justices of the Peace as may be deemed fit and proper to exercise the powers conferred on

Definition of term "The

them by this Ordinance : and the term " The Magistrate," whereso-

Magistrate."

ever occurring in this Ordinance, shall be understood to mean the

magistrate so nominated and appointed.

Clerks and officers. 4 SUCH courts shall have such clerks, bailiffs, and other

ministerial officers as shall be necessary for the administration of justice and the execution of the judgments, orders, and process of such courts; and all such officers shall be appointed and removable by the Governor at pleasure, and shall execute such other duties as shall be assigned to them respectively by this Ordinance, or the general rules and orders to be made in pursuance thereof.

Duties of clerks, and their 5 EVERY clerk of such court shall issue all summonses,

accounts. warrants, and writs of execution, and register all orders, judgments, and proceedings of court, and shall take charge of and keep an account of all court fees and fines payable or paid into court, and of all moneys paid into and out of court, and shall enter such account in a book belonging to such court, to be kept by him for that purpose, and shall from time to time, whensoever, and in such form and manner as he shall be ordered by the Governor, submit his accounts to be audited or settled by the Auditor General.

Power of the court may be 6 IN every case cognizable under this Ordinance, it shall be

exercised by "The Magis-	lawful for The Magistrate alone, or associated with any other Justice
trate " alone, or in con-
junction with one or more	or Justices of the Peace attending at the prescribed time and place
ordinary Justices.	in open court, to exercise the powers of such court, such magistrate

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presiding thereat; and in all cases of issuing any summons or warrant, taking any recognizance, or enlarging, continuing, or adjourning any proceedings, and in all 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 Justice or Justices of the Peace attending at the prescribed time and place, and in open court, to exercise the powers of such court. Provided that when two or more Justices of the Peace. and The Magistrate shall form such court, the decision of the major part of them shall be taken and recorded as the judgment of the court. And provided, that during the unavoidable absence of The Magistrate, or in any case in which he shall be personally interested, it shall be competent for any two or more Justices of the Peace to exercise the powers of the court.

7 WHERE, by reason of the death or unavoidable absence of In case of death clerk may

The Magistrate or Justices of the Peace aforesaid, such court cannot	adjourn the court.
be held, the clerk, or in the event of his absence, the bailiff, shall adjourn the court to such day as he may deem convenient, and enter in the minute book the cause of such adjournment.

8 ALL pleas of personal actions where the debt or damage Definition of the jurisdiction

claimed is not more than Fifty pounds, whether on a balance of

of the court.

account or otherwise, may be holden in a court constituted under this Ordinance, and shall be heard and determined in a summary way. Provided that no such court shall have cognizance of any action of ejectment, or in which the title to any corporeal or incorpo- real hereditaments or to any toll fare market or any fee of office 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 prosecution, or for any libel or slander, or for criminal conversation, or for seduction, or breach of promise of marriage.

9 ON the application of any person desirous to bring a suit Suits to be by Plaint.

under this Ordinance, the clerk of the court shall enter in a book to be kept for that purpose in his office, a plaint in writing, stating the names and the last known places of abode of the parties, and the substance of the action intended to be brought, every one of Which plaints shall be numbered in every year according to the order in which it shall be entered; and thereupon a summons, stating the substance of the action and bearing the number of the plaint in the margin thereof; shall be issued according to such form, and be served on the defendant so many days before the day on which the court shall be holden at which the cause is to be tried as shall be

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directed by the rules made for regulating the practice of the court as hereafter provided; and delivery of such summons to the defendant, or in such other manner as shall be specified in the rules of practice, shall be deemed good service ; and no misnomer or inaccurate description of any person or place in any such plaint or summons shall vitiate the same, so that the person or place be therein described as to be commonly known.

Summons to the nearest 1.0 SUCH summons may issue in any district in which the

court•

defendant or one of the defendants shall dwell or carry on his business at the time of the action brought; or, by leave of The Magistrate for the district in which the defendant or one of the defendants shall have dwelt or carried on his business at some time within six calendar months next before the time of the action brought, or by leave of The Magistrate for the district in which the cause of action arose, such summons may issue hi either of such last mentioned districts.

Demands not to be divided 11 IT shall not be lawful for any plaintiff to divide any cause

for the purpose of bringing of action for the purpose of bringing two or more suits in any of two or more suits.

the said courts; but any plaintiff having cause of action for more than the sum for which a plaint might be entered under this Ordi- nance may abandon the excess, and thereupon the plaintiff shall, on proving his case, recover to an amount not 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.

Minors may sue for wages. 12 IT shall be lawful for any person under the age of twenty-

one years to prosecute any suit in 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.

THE jurisdiction of the court holden under this Ordinance shall extend to the recovery of any demand not exceeding the sum of Fifty pounds, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of a distributive share under an intestacy, or of a legacy under a will.

Partnership

P	and
an i

intestacy.

Executors may sue and be 14 IT shall be lawful for any executor or administrator to sue

sued. and be sued in any court holden under this Ordinance in like

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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.

18 NO privilege, except as herein excepted, shall be allowed to any person to exempt him from the jurisdiction of any court No privilege allowed.

holden under this Ordinance. •

16 WHERE any plaintiff shall have any demand recover- One of several persons

able under this Ordnance against two or more persons jointly	liable may be sued.
answerable, it shall be sufficient if any of such persons be served with process, and judgment may be obtained and execution issued against the person or persons so served, notwithstanding that others jointly liable may not have been served or sued, or may not bewithin the jurisdiction of the court ; and every such person against
whom judgment shall have been obtained under this Ordinance, and who shall have satisfied such judgment, shall be entitled to demand and recover in the courts holden under this Ordinance, contribution from any other person jointly liable with him.

17 WITHIN the time named on the day in that behalf named Proceeding on hearing the

in the summons, the plaintiff shall appear, and thereupon the	plaint.
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, in a summary way to try the cause without a jury, and give judgment.

18 NO evidence shall be given by the plaintiff on the trial of No evidence to be given of any demand that is not in

any such case as aforesaid, of any demand or cause of action, except	summons.
such as shall be stated in the summons hereby directed to be issued.

18 NO defendant in any court holden under this Ordi- Notice to be given to clerk of special defences, who

nance shall be allowed to set off any debt or demand claimed or	shall communicate the same
recoverable by him from the plaintiff, Or to set up by way of defence,	to the plaintiff.
and to claim and have the benefit of infancy, coverture, or any statute of limitations, or of his discharge under any statute or law relating to bankrupts or to insolvents, without the consent of the plaintiff, unless such notice thereof as shall be directed by the said rules of practice shall have been given to the clerk of the court ; 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 con- veniently may be, after receiving such notice, communicate the same to the plaintiff by the post, or by causing the same to be delivered at his usual place of abode or business, but it shall not be _necessary for the defendant to prove that such notice was communicated to the plaintiff by the clerk.

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Suits may be settled by 20 THE court may in any case, with the consent of both

arbitration, parties to the suit, order the same, with or without other matters

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 such terms, as the court shall think reasonable and just ; and such reference shall not be 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 judgment in the cause, and shall be as binding and effectual to all intents as if given by the court. Provided that the court may, if it think fit, on application at the first sitting thereof held after the expiration of one week after the entry of such award, set aside any such award so given as aforesaid, or may, with the consent of both parties aforesaid, revoke the reference, or order another reference to be made in manner aforesaid.

Proceedings when plaintiff 21 IF upon the day of the return of any summons, or at does not appear• any continuation or adjournment of the said court,„ or of the cause

for which the said summons shall have been issued, the plaintiff shall not appear, the cause shall be struck out ; and if he shall appear, but shall not make proof of his claim or demand to the satisfaction of the said court, it shall be lawful for the court to nonsuit the said plaintiff, or to give judgment for the defendant: and in either case where the defendant shall appear and shall not admit the claim or demand, to award to the defendant, by way of costs and satisfaction for his trouble and attendance, such sum as the court in its discre- tion shall think fit ; and such sum shall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same court can be recovered. Provided always, that if the plaintiff shall not appear when called upon, and the defendant or some one duly authorised on his behalf should appear and admit the cause of action to the full amount claimed, and pay the fees payable in the first instance by the plaintiff, the court may, if it shall think fit, proceed to give judgment as if the plaintiff had appeared.

Proceedings if no appear- 22 IF on the day so named in the summons, or at any con- ance entered. tinuation or adjournment of the court or cause in which the

summons was issued, the defendant shall not appear, or sufficiently excuse his absence, or shall neglect to answer when called in court, the court, upon due proof of service of the summons, may proceed to the hearing or trial of the cause on the part of the plaintiff only, and the judgment thereupon shall be as valid as if both parties had attended: Provided always, that the court in any such case, at the same or any subsequent sitting, may set aside any judgment so given in the absence of the defendant, and the' execution thereupon, and

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may grant a new trial of the cause, upon such terms, if any, as to payment of costs, giving security for debt or costs, or such other terms as it may think fit, on sufficient cause shewn for that purpose.

23 THE court may in any case make orders for granting Court may grant time.

time to the plaintiff or defendant to proceed in the prosecution or defence of the suit, and also may from time to time continue or adjourn any court, or the hearing or further hearing of any cause in such manner as to the court may seem best.

24 IT shall be lawful for the defendant in any action brought Payment into court.

under this Ordinance within such time as shall be directed by the rules made for regulating the practice of the court, to pay into court such 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 ; and notice of such payment shall be communicated by the clerk of the court to the plaintiff by post, or by causing the same to be delivered at his usual place of abode or business, and the said sum of money shall be paid to the plaintiff; but if he shall elect to proceed, and if the plaintiff shall recover no further sum in the action than shall have been so paid into court, the plaintiff shall pay to the defendant the costs incurred by him in the said action after such payment ; and such costs shall be settled by the court, and an order shall thereupon be made by the court for the payment of such costs by the plaintiff.

25 ALL the costs of any action or proceeding in the court Costs to be apportioned or

between the parties in such manner as the court shall think fit, and action.	not herein otherwise provided for shall be paid by or apportioned to abide the event of the
in default of any special direction shall abide the event of the action; and execution may issue for the recovery of any such costs in like manner as for any debt adjudged in the said court.

26 EVERY order and judgment of any court holden under Judgments how far final.

this Ordinance, except as herein provided, shall be final and con- clusive between the parties ; but the court shall have power to non-suit the plaintiff in every case in which satisfactory proof shall not be given to the court entitling either the plaintiff or defendant to the judgment -of the court, and shall also in every case whatso- ever have the power, if the court Shall think fit, to order a new trial or hearing to be had on such terms as the court shall think reason- able, and in the meantime to stay the proceedings.

27 NO plaint, cause, or matter pending in any court under No action to be removed into the Supreme Court

this Ordinance shall be removed or removable from the said but on certain conditions.

court

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court into the Supreme Court by any writ or process, unless by leave of the Chief Justice of the Supreme Court in cases which shall appear to such Chief Justice fit to be tried in the Supreme Court, and upon such terms as to payment of costs, giving security for debt or costs, or such other terms as he shall think fit.

Judgment not to be removed 28 NO judgment, order, or determination given or made by

by certiorari, &c. The Magistrate or in any such local court shall be removed by appeal, motion, writ of error, certiorari, or otherwise, into any other court whatever, save and except in the manner and according to the provisions herein mentioned.

Judgment may be removed29 IF the Chief Justice shall be satisfied that the party against

by certiorari if there are no whom a judgment for an amount exceeding Twenty pounds, goods tu be taken under it. exclusive of costs ., has been obtained in a local court, has no goods

or chattels which can be conveniently taken to satisfy such judgment, he may, if he shall think fit, and on such terms as to costs as he may direct, order a writ of certiorari to issue to remove the judgment of the local court into the Supreme Court, and when removed it shall have the same force and effect, and the same proceedings may be had thereon, as in the case of a judgment of such Supreme Court ; but no action shall be brought upon such judgment.

Who may appear for any so IT shall be lawful for the party to the suit or other pro-

ceechng, or for an attorney of Her Majesty's Supreme Court ben c,

parties in the Court. In an attorney acting generally in the action for such party but not an attorney retained as an advocate by such first-mentioned attorney, or for a barrister retained by or on behalf of the party, on either side, but without any right of exclusive or pre-audience, or by leave of the court, for any other person allowed by the court to appear instead of the party, to address the court, but subject to such regulations as The Magistrate may from time to time prescribe for the orderly transaction of the business of the court. And no person, not being an attorney admitted to Her Majesty's Supreme Court, shall be entitled to have or recover any sum of money for appearing or acting on behalf of any other person in the said court ; and no attorney shall be entitled to have or recover

Costs where claim exceeds therefor any sum of money unless the debt or damage claimed

forty shillings, but does not shall be more than forty shillings, or to have or recover more than exceed twenty pounds. ten shillings for his fees and costs unless the debt or damage claimed

shall be more than five pounds, or more than fifteen shillings unless the debt or damage claimed shall be more than twenty pounds, and in no case where the debt or damage claimed shall not exceed twenty pounds shall any fee exceeding one pound three shillings and

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Sixpence be allowed for employing a barrister as counsel in the

2ause, and the expense of employing a barrister or an attorney, tither by plaintiff or 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 five pounds is claimed, or in any case unless by order of The Magistrate.

31 WHERE in any action the debt or damage claimed/shall Where claim shall not ex-

not exceed Twenty pounds, an attorney shall not be entitled to	ceed Twenty pounds atter-
recover from his client any father costs or charges in the conduct	Ig shall n ntt threcoverer c froman

client further ocosts

of such suit than those mentioned in the last preceding section,	set forth in. the 30th section.
unless upon taxation of costs The Magistrate be satisfied, by writing under the hand of the client, that he has agreed to pay further costs or charges ; and in such case The Magistrate may allow any costs and charges not exceeding the amount which may have been so agreed to be paid.

32 WITH respect to proceedings in the local courts in actions Scale of costs to be allowed

where the debt for damage claimed/exceeds Twenty pounds, the

where claim exceeds twentypounds.

Attorney General, as provided in the 74th' section, shall be em- powered to frame a scale of costs and charges to be paid to counsel and attorneys, and from time to time to amend such scale ; and such scale or amended scale shall be submitted to the Governor, who with the advice of the Executive Council may allow or disallow or alter the same ; and the scale or amended scale so allowed or altered shall, from a day to be named by the Governor, be in force in every local court. Provided, always, that until such scale shall be so framed and approved, and in force as aforesaid, the scale of costs framed under the provisions of the 19th and 20th Victoria, chapter 108, respecting similar proceedings in the County Courts in England, shall be taken and received as the scale applicable to proceedings in the said local courts of the Colony.

33 WITH respect to such proceedings as are specified in the Costs between party and

last preceding section, all costs and charges between party and party	party where claim exceeds
shall be taxed by The Magistrate of the court in which such costs	Twenty pounds shall betaxed. by magistrate.
and charges were incurred, and no costs or charges shall be allowed on such taxation which are not sanctioned by the scale then in force.

34 WITH respect to such proceedings as are last hereinbefore Costs between attorney and

specified, all costs and charges between attorney and client shall, on	Twenty pounds shall onclients where claim exceeds
the application either of the attorney or client, but not otherwise,	application of attorney or client be taxed by magis-
be taxed by The Magistrate of the court in which such costs and	trates.
charges were incurred; and no costs or charges shall be allowed on

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such taxation which are not sanctioned by the scale then in force, unless The Magistrate shall be satisfied that the client has agreed in writing to pay them, in which case they may be allowed; and no attorney shall have a right to recover from his client any costs or charges in respect of such proceedings, unless they shall have been allowed either on such taxation, or on the taxation of the master of the Supreme Court.

Costs not recoverable in	35 IF in any action commenced after the passing of this
certain cases in Supreme

Courts. Ordinance in Her Majesty's Supreme Court, in covenant, debt, detinue, or assumpsit, not being an action for breach of promise of marriage, the plaintiff shall recover a sum not exceeding Twenty pounds, or if in any action commenced after the passing of this Ordinance in Her Majesty's Supreme Court, in trespass, hover, or case not being an action for malicious prosecution, or for libel, or for slander, or for criminal conversation, or for seduction, the plaintiff shall recover a sum not exceeding five pounds, the plaintiff shall have judgment to recover such sum only, and no costs, except in the cases hereinafter provided ; and it shall not be necessary to enter any suggestion on the record to deprive such plaintiff of costs, nor shall any such plaintiff be entitled to costs by reason of any privilege as attorney or officer of such court or otherwise.

Chief Justice may certify36 PROVIDED, always, and be it enacted, that if the plaintiff for costs, shall in any such action as aforesaid recover a sum not exceeding

the sum in that behalf hereinbefore mentioned, by verdict, and the Chief Justice or other presiding officer before whom such verdict shall be obtained shall certify on the back of the record that it appeared to him at the trial that the cause of action was one for which a plaint could not have been entered in any such local court as aforesaid, or that it appeared to him at the trial that there was a sufficient reason for bringing the said action in the Supreme Court, the plaintiff in such case shall have the same judgment to recover his costs that he would have had if this Ordinance had not been passed.

Power to Supreme .Court recover his costs by reason of the provisions of the thirty-fifthor Judge at chambers to 37 IN any action in which the plaintiff shall not be entitled to

make au order for costs. section, whether there be a verdict in such action or not, if the

plaintiff shall make it appear to the satisfaction of the Supreme Court in which such action was brought, or to the satisfaction of the Chief Justice at chambers, upon summons, that such action was brought for a cause in which no plaint could have been entered in any such local court, or that such action was removed from a local court by certiorari, or that there was sufficient reason for bringing

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such action in the Supreme Court, then and in any of such cases the Supreme Court, or the Chief Justice at chambers, shall thereupon, by rule or order, direct that the plaintiff shall recover his costs, and thereupon the plaintiff shall have judgment to recover his costs.

38 ANY person against whom a plaint shall be entered in any such court may, if he think fit, whether he be summoned upon such plaint or not, in the presence of the clerk of the court in which such plaint shall have been entered, or in the presence of an attorney of the Supreme Court, sign a statement confessing and admitting the amount of the debt or demand or part of the amount of the debt or demand for which such plaint shall have been entered, and such clerk shall, as soon as conveniently may be after receiving such statement, send notice thereof to the plaintiff, by the post or by causing the same to be delivered at his usual place of abode or business, and thereupon it shall not be necessary for the said plaintiff to prove the debt or demand so confessed and admitted as aforesaid; but the court at the next sitting thereof, whether the parties or either of them attend such court or not, shall, upon proof, by affidavit of the signature of the party, if such statement were not made in the presence of the clerk, proceed to give judgment for the debt or demand so confessed and admitted, in the same manner, and subject to the same conditions, as if the court had tried the cause, and given judgment thereupon.. Defendant may admit debt.

39 IF the person against whom a plaint shall be entered in any Parties may agree to

court can agree with the person on whose behalf such plaint shall amount due and enter judg-

m ent therefor.

have been entered upon the amount of the debt or demand in respect of which such plaint shall have been entered, and upon the terms and conditions upon which the same shall be paid or satisfied; it shall be lawful for such persons respectively, in the presence of the clerk of the court in which such plaint shall have been entered, or in the presence of an attorney of the Supreme Court, to sign a statement of the amount of the debt or demand so agreed upon between such persons respectively, and of the terms and conditions upon which the same shall be paid or satisfied ; such clerk shall receive such statement, and shall thereupon, upon proof by affidavit, of the signature 'of the party, if such statement were not made in the presence of the clerk, enter up judgment for the plaintiff for the amount of the debt or demand so agreed on, and upon the terms and conditions mentioned in such statement; and such judgment shall to all intents and purposes be the same, and have the same effect, and shall be enforced and enforceable in the same manner, as if it had been a judgment of the said court.

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If plaintiff do not appear, 40 IN every case where the plaintiff shall not appear, either

costs may be given by

by himself or his attorney, upon the day of the return of any sum_

magistrate.

mons for hearing, or at any continuation or adjournment of the said hearing, and the defendant shall appear either by himself or his attorney upon such day of hearing, continuation, or adjournment, it shall be lawful for the court to award to the defendant or his attor. ney, by way of costs of his attendance and satisfaction for his trouble, such sum as the court shall think fit ; and the sum so awarded shall be recoverable from the plaintiff by such ways and means as any debt or damage ordered to be paid by the same court can be recovered.

Either party may appeal. 41 IF either party in any cause, action, or proceeding in which

jurisdiction is given to the local courts shall be dissatisfied with the determination or direction of the said courts in point of law, or upon the admission or rejection of any evidence, such party may appeal from the same to the Supreme Court, provided that such party shall, within ten days after such determination or direction, give notice of such appeal to the other party, or his attorney, and also give security, to be approved by The Magistrate or by the court, for the costs of the appeal, whatever be the event of the appeal, and for the amount of the judgment, if he be the defendant and the ap- peal be dismissed; provided nevertheless, that such security, so far as regards the amount of the judgment, shall not be required in any case where the local court shall have ordered the party appealing to pay the amount of such judgment into the hands of the clerk of the local court in which such action shall have been tried, and the same shall have been paid accordingly ; and the said court of appeal may either order a new trial on such terms as it thinks fit, or may order judg- ment to be entered for either party, as the case may be, and make such order with respect to the costs of the said appeal as such court may think proper ; and such orders shall be final.

Form of appeal. 42 SUCH appeal shall be in the form of a case agreed on by

both parties, or their attorneys, and if they cannot agree, The Magistrate, upon being applied to by them or their attorneys, shall settle the case and sign it ; and such case shall be transmitted by the appellant to the office of the Registrar of the Supreme Court.

&3 NO appeal shall lie from the decision of a local court, if

Parties

P may agree not to

appeal, beforeore such decision is pronounced both parties shall agree, in writing, signed by themselves or their attorneys or agents, that the decision of the said court shall be final.

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THE Chief Justice may from time to time make general be as valid as if included in this Ordinance. Chief Justics to make

4 4

orde	rs for regulating the proceedings on appeals, which orders shall	general orders to regulate
appeals.

45 IF any party shall sue another in any local court for any Not to sue a second time in

debt or other cause of action for which he hath already sued	any court, after judgment
him, and obtained judgment, in any other court, the proof of such	obtained.
former suit having been brought and judgment obtained may be given, and the party so suing shall not be entitled to recover in such second suit, and shall be adjudged to pay three times the costs of such second suit to the opposite party.

46 IF there shall be cross judgments between the parties, Court may make orders for

execution shall be taken out by that party only who shall have	payments by instalments.
obtained judgment for the larger sum, or for so much only as shall
remain after deducting the smaller sum, and satisfaction for the	Cross judgments.
remainder shall be entered, as well as satisfaction on the judgment for the smaller sum, and if both sums shall be equal, satisfaction shall be entered on both judgments.

47 WHENEVER the court shall have made an order for the Court may award execution

payment of moneys, the amount shall be recoverable, in case of

against goods.

default or failure of payment thereof forthwith, or at the time or times and in manner thereby directed, 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 party prosecuting such order, shall issue a writ of fieri facia& 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 shall be so ordered, wheresoever the same may be found, and also the costs of the execution; and all constables and other peace officers within their several jurisdictions shall aid in the execution of every such warrant. Provided that two or more such warrants issued out of such court against the same defendant shall have priority one over the other according to the time they shall have been issued.

48 IF the court shall have made an order for payment of any Execution not to issue till after default in payment of

sum of money by instalments, execution upon such order , shall	some instalment, and then
not issue against the party until after default in payment of some	it may issue for the whole
instalment, according to such order, and execution or successive	sum due.
executions may then issue for the whole of the said sum of money and costs then remaining unpaid, or for such portion thereof as the Court shall order either at the time of making the original order or at any subsequent time.

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Small Debts.

in execution. issuing out of the said its against the goods and chattels of any, What goods may be taken 49 EVERY bailiff or officer executing any process of execution

person may by virtue ___ereof 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 any other bank), and any cheques, bills of exchange, promissory notes, bonds, specialties or securities for money belonging to any such person against whom any such execution shall have issued as aforesaid.

Securities seized to be held 5

TEIE bailiff shall hold any cheques, bills of exchange, which shall have been so seized 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 the 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 turived.

by bailiffs• promissory notes, bonds, specialties, or other securities for money

Summons on charge of 51 IT shall be lawful for any party who has obtained any fraud, how obtained. unsatisfied judgment or order in any court held by virtue of this

Ordinance, or any Ordinance hereby repealed, for the payment of any debt or damages or costs, to obtain a summons from the court nearest to which any other party shall then dwell or carry on his business, such summons to be in such form as shall be directed by the rules made for regulating the practice of the courts as herein provided, and to be served personally upon the person to whom it is directed, requiring him to appear at such time as shall be directed by the said' rules, to answer such things as are named in such sum- mons; and if he shall appear in pursuance of such summons, he may be examined upon oath touching his estate and effects, and the manner and circumstances under which he contracted the debt or incurred the damages or liability which is the subject of the action in which judgment has been obtained against him ; and as to the means and expectation he then had, and as to the property and means he still hath of discharging the said debt or damages or liability, and as to the disposal he may have made of any property; and the person obtaining such summons as aforesaid, and all other witnesses whom the court shall think requisite may be examined

27° ITICTORI1E, No. 21.

Small Debts.

upon oath touching the enquiries authorised to be made as aforesaid, and the costs of such summons and all proceedings thereon shall be deemed costs in the cause.

52 IF the party so summoned shall not attend as required by commitment for fraud.

such summons, and shall not allege a sufficient excuse for not attending ; or shall, if attending, refuse to be sworn or to disclose

any of the things aforesaid; or if he shall not make answer touching

the same to the satisfaction of such court; and in any or either of such cases it shall further appear to such court, either by the examination of the party or any other evidence, that such party, if a defendant, in incurring the debt or liability which is the subject of the action in which judgment has been obtained, has obtained credit from the plaintiff under false pretences, or by means of fraud, or breach of trust, or has wilfully contracted such debt or liability without having had at the same time a reasonable expectation of being able to pay or discharge the same, or shall have made or caused to be made, any gift, delivery, or transfer of any property, or shall have charged, removed, or concealed the same with intent to defraud his creditors or any of them, or if it shall appear to the satisfaction of the court that the said party so summoned has then or has had since the judgment obtained against him sufficient means and ability to pay the debt or damages or costs so recovered against him, either altogether or by any instalment or instalments which the court in which the judgment was obtained shall have ordered, and shall have refused or neglected to pay the same, it shall be lawful for such court, if such court shall think fit, to order that any such party may be committed to the gaol or lock-up nearest 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.

53 IT shall be lawful for any court before whom such Power to rescind or alter

summons shall be heard, if the court shall think fit, whether or	orders.
not it shall make 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 instalments or otherwise, of any debt or damages recovered, and to make any further or other order, either for the payment of the whole of such debt or damages and costs forthwith, or by any instalments,
Or in any other manner as such court may think reasonable and just.

54 IN every case where the defendant in any suit brought Power to examine and to

in any court shall have been personally served with the summons commit at hearing of the cause.

27° VICTORIX, No. 21.

Small Debts.

to appear, or shall personally appear at the trial of the same, 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 touching 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 hereinbefore contained in case the plaintiff had obtained a summons for that purpose after the judgment obtained as herein- before mentioned.

Mode of issuing and exe- 55 WHENEVER any order of commitment shall have been

meat. Magistrate or of one of the Justices forming the court in which outing warrants of commit- made as aforesaid, a warrant of commitment, under the hand of The

such order was made, shall issue, directed to the bailiffs, who by such warrant shall be empowered 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 every gaol and prison mentioned in any such order shall be bound to receive and keep the defendant therein until discharged under the provisions of this Ordinance, or otherwise by due course of law.

5 NO imprisonment under this Ordinance shall in anywise cause of action on which a judgment has been obtained, or protect the defendant from being anew summoned and imprisoned for any new fraud or other default rendering him liable to be im- prisoned under this Ordinance, or deprive the plaintiff of any right to take out execution against the goods and chattels of the defendant in the same manner as if such imprisonment had not taken place.

Imprisonment not to operate

as a satisfaction for the	operate as a satisfaction or extinguishment of the debt or other
debt, 8:c.

How execution may be had . 57 IN all cases where a warrant of execution shall have

at a distance from the court. Issu ed against the goods and chattels of any party or an order for his commitment shall have been made under this Ordinance, and such party, or his goods and chattels, shall be at a distance from the court, it shall be lawful for the court to issue such warrant of execution 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 the bailiff, and shall, within

27° VICTORI/E, No. 21.

Small Debts.

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 on 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 monies received in pursuance of the warrant to the court from which the same shall have issued; and where any order of commitment shall have been made and the person apprehended, he shall be forthwith conveyed in custody of the bailiff or officer appre- hending him to the nearest gaol or lock-up, and kept therein for the 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.

58 IF it shall at any time appear to the satisfaction of the Power to court to suspend

court, by the oath or affirmation of any person, or otherwise,

execution in certain cases.

that any defendant is unable from sickness or other sufficient cause to pay and discharge the debt or damages recovered against him, or any instalment thereof ordered to be paid as aforesaid, it shall be lawful for the court in its discretion to suspend or stay any judg- ment, 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 time to time until it shall appear, by the like proof as aforesaid, that such temporary cause of disability has ceased.

aforesaid shall be until after the expiration of five days at least next goods attam iitheexecsuatlieon. of 59 NO sale of any goods which shall be taken in execution as nee

following the day on which such goods shall have 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; and 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 possession by the bailiff; and no goods taken in execution under this Ordinance' shall be sold for the purpose of satisfying the warrant of execution except by auction.

60 IT shall be lawful for any such court by order to authorise Bailiffs may act as ap-

any of the bailiffs appointed under this Ordinance to act as	praisers or auctioneers.
auctioneers for the purpose of selling any goods, chattels, or effects taken in execution under this Ordinance; and the bailiff so authorised may without other license in this behalf do and perform all the duties of auctioneers.

61 SECTION 1 of the 8th Anne, chapter 14, shall not apply to pWheenss,5.oan otosrepmedayuger

goods taken in execution under a warrant of a local court, but the roc m

certain rent in arrears.

VICTORI}E, No. 21.

Small Debts.

lancllord of any tenement in which any such goods shall be so taken may claim the rent thereof at any time within five clear days from the date of such taking, or before the removal of the goods, by delivering to the bailiff or officer making the levy any writing. signed by himself or his agent, which shall state the amount of rent claimed to be an arrear, and the time for and in respect of which such rent is due ; and if such claim be made, the bailiff or officer making the levy shall in addition thereto distrain for the rent so claimed, and the costs of such distress, and shall not within five days next after such distress sell any part of the goods taken, unless they be of a perishable nature, or upon the request in writing of the party whose goods shall have been taken; and the bailiff shall afterwards sell such of the goods under the execution and distress as shall satisfy, first, the costs of and incident to the sale, next, the claim of such lancllord not exceeding the rent of four weeks where the tenement is let by the week, the rent of two terms of payment where the tenement is let for any other term less than a year, and the rent of one year in any other case, and lastly, the amount for which the warrant issued; and if any replevin be made of the goods so taken, the bailiff shall, notwithstanding, sell such portion thereof as will satisfy the costs of and incident to the sale under the execu- tion, and the amount for which the warrant issued, and in either event the overplus of the sale (if any), and the residue of the goods, shall be returned to the defendant, and the poundage of the bailiff and broker for keeping possession, appraisement, and sale under such distress, shall be the same as would have been payable if the distress had been an execution of the local court, and no other fees shall be demanded or taken in respect thereof.

No execution shall be stay- 62 NO judgment or execution shall be stayed, delayed, or

ed by writ of error. reversed, upon or by any writ of error or supersedeas thereon to be sued for the reversing of any judgment given in any court holden under the provisions of this Ordinance.

Execution to be superseded63 IN or upon every warrant of execution issued against the on payment of debt and goods and chattels of any person whomsoever, the clerk of the court costs. shall cause to be inserted or endorsed the sum of money and costs

adjudged, with the sums allowed by this Ordinance as increased costs for the 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 execution 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

27° ITICTOIII/E, No. 21.

Small Debts.

Ind costs, together with the fees herein directed to be paid, the

execution shall be superseded, and the goods and chattels of the

said party shall be discharged and set at liberty.

64 ANY person imprisoned under this Ordinance who shall Persons imprisoned setts-

payable, and costs remaining due at the time of the order of im- discharged.	have paid or satisfied the debt or demand or the instalments thereof fYing debt and costs to be
prisonment being made, together with the costs of obtaining such order, and all subsequent costs, shall be discharged out of custody upon certificate of Such payments or satisfaction, signed by the bailiff or other officer aforesaid to the court in which the order of impri- sonment was made.

65 IF any claim shall be made to or in respect of any goods Claims as to goods taken in

or chattels taken in execution under the process of any court	execution to be adjudicated
holden under this Ordinance, or in respect of the proceeds or	in court.
value thereof, by any landlord for rent, or by any person not being the party against whom Rich process has issued, 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 claim, and thereupon any action which shall have been brought in the Supreme Court or any other court in respect of such claim shall be stayed, and the court in which such action shall have been brought, on proof of the issue of such summons, and that the goods and chattels were so taken in execution, may order the party bringing such action to pay the costs of the proceedings had upon such action after the issue of such summons, and the court issuing such sum- mons shall adjudicate upon such 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 manner as any order made in any suit brought in such court.

66 ALL actions of replevin in cases of distress for rent in Actions of replevin may be

arrear or damage feasant shall and may be brought without writ	in brought without writ.
a court held under this Ordinance.

67 IN every such action of replevin the plaint shall be Plaints where to be entered.

entered in the court holden under this Ordinance nearest to the

place where the distress was taken.

68 THE powers and responsibilities of the sheriff with respect How replevin may be granted ; power of sheriff to

to replevin bonds and replevins shall henceforth cease ; and The

Magistrate of the local court of the district in which any distress cease.

27° ITICTORLE, No. 21.

Small Debts.

subject to replevin shall be taken, shall be empowered, subject to the regulations hereinafter contained, to approve of replevin bonds, and to grant replevins, and to issue all necessary process in relation thereto, and such process shall be executed by the bailiff.

Magistrate may grant re- 69 THE Magistrate shall, at the instance of the party whose

plevins. goods shall have been distrained, cause the same to be replevied to such party, on his giving one or other of such securities as arc mentioned in the next two succeeding sections.

70 AN action of replevin may be commenced in the Supreme

Replev in s may be co m-

menced in Supreme court. Court in the form applicable' to personal actions therein, and such

court shall have power to hear and determine the same ; and if the replevisor shall wish to commence proceedings in the Supreme Court, he shall at the time of replevying give security, to be approved of by The Magistrate, for such an amount as such magistrate shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause

Conditions of security to be in the Supreme Court, conditioned to commence an action of replevin given in such cases. against the distrainor in the Supreme Court within one week from

the date thereof, and to prosecute such action with effect and without delay, and, unless judgment thereon be obtained by default, to prove before such Supreme Court that he had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise, was in question, or that such rent or damage exceeded Twenty pounds, and to make return of the goods, if a return thereof shall be adjudged.

Conditions of security to71 IF the replevisor shall wish to commence proceedings in a

be given when replevin local court, he shall, at the time of replevying, give security, to be

brought in local court. approved by The Magistrate, for such an amount as such magistrate

shall deem sufficient to cover the alleged rent or damage in respect of which the distress shall have been made, and the probable costs of the cause hi the local court, conditioned to commence an action of replevin against the clistrainor in the local court of the district in which the distress shall have been taken, within one month from the date of the security, and to prosecute such action with effect and without delay, and to make return of the goods, if a return thereof shall be adjudged.

Replevins shall, at the in- 72 ANY action of replevin brought in a local court shall be

moved into Supreme Courtstance of defendant, be re- removed into the Supreme Court by writ of certiorari, if the

by certiorari in certain defendant shall apply to such Supreme Court for such -writ, and shall ases• give security, to be approved of by the master of such Supreme

Court, for such amount, not exceeding One hundred and fifty pounds,

27° VICTORLE, No. 21.

Small Debts.

as such master shall think fit, conditioned to defend such action with effect, and unless the replevisor shall discontinue or shall not pro- secute such action, or become nonsuit therein, to prove before such Supreme Court that the defendant had good ground for believing either that the title to some corporeal or incorporeal hereditament, or to some toll, market, fair, or franchise, was in question, or that the rent or damage in respect of which the distress shall have been taken exceeded Twenty pounds ; and such Supreme Court shall have power to determine the same action.

visions of the Ordinance of the Legislative Council, 20th Victoria, discharge of debtor arrested	73 IT shall be lawful for any person arrested under the pro- Court may be moved for
No. 9 of 1856," intituled "An Ordinance to enlarge the remedies of of under 20 Viet, No. 9.

Creditors against the persons of their Debtors," to apply on affidavit

to the Court nearest to the place of arrest for an order or rule on the plaintiff, to shew cause why the person so arrested should not be discharged out of custody on the ground that such arrest was illegal, vexatious, or oppressive, and that it shall be lawful for such court or for The Magistrate to make absolute or discharge such rule or order, and to direct the costs of the application to be paid by either party, or to make such other order therein as to such court or such magistrate shall seem fit.

general rules and orders as to him shall seem expedient for and practice and proceedings. 74 IT shall be lawful for the Attorney General to frame such General rules and orders of

concerning the practice and proceedings of the courts holden under this Ordinance, and for the execution of the process of the courts, and generally for carrying this Ordinance into effect, and the same from time to time to annul, 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 notified-in the

Government Gazette for public information, and shall commence and

have the force of law after the expiration of fourteen days from such publication. Provided always, that until such rules shall be so framed as aforesaid, and also in cases where no such rules shall apply and no such rules shall be prescribed by Ordinance of the said Colony, the rules and practice of the county courts in England shall be in force and govern the proceedings as far as the same can or may be applicable.

of any such court on the ground of its not being the nearest court rained' 75 NO defence or objection shall be allowed to the jurisdiction Nearest court how deter-

within the meaning of this Ordinance, unless such defence or

27° VICTORLE, No. 21.

Small Debts.

objection be stated in writing at or before the time for appearance ; and the determination of the court on such matter shall be final and conclusive.

ANY summons or process of the court, not being writs of

Summons may be served 76

by any Police Constable of execution, may be served by any Police Constable of the Colony or

the Colony.

any other person authorised by such court, and such service shall be as valid as if the same had been made by a bailiff or officer of the court out of which such summons or other process shall have issued.

Service of summons or other 77 SERVICE of any summons or other such process of the

process may be proved by court may be proved by affidavit purporting to be sworn before affidavit before a magistrate.

any magistrate of the Colony; and if such affidavit purport to be signed by the Justice by or before whom the same purports to be taken, it shall be sufficient evidence of service without further proof.

Summons to witnesses. 78 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 a clause requiring the production of books, deeds, papers and writings in their possession or control, and in such 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.

Penalty on witnesses neg- 79 EVERY person on whom any such summons shall have

holing summons. 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 allowance as shall from time to time be settled by the general rules of practice of the court, and who shall refuse or neglect, without sufficient cause, to appear or produce any books, papers, or writings required by such summons to be produced, and also every person present in court who shall be required to give evidence and who shall refuse to be sworn and give evidence, shall forfeit and pay such 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 towards indemnifying the party injured by such refusal or neglect, and the remainder thereof shall form a part of the general revenue of the Colony.

Fines how to be enforced 80 PAYMENT of any fine imposed by any court under the and accounted for. authority of this Ordinance may be enforced upon the order of the

27° VICTORI7114, No. 21.

Small Debts.

court in like manner as payment of any debt adjudged in the said

court, and shall be accounted for as herein provided.

which any proceeding should be taken in the local court is not 81 WHERE the time within which or where the mode in Time how regulated.

prescribe& such time and mode shall be appointed by the rules of

practice, orders, and forms to be made as herein provided.

82     IF The 1VIag,istrate shall be satisfied by either party to a Cause may be renvedeetro.

cause pending in his court that such cause can be moved conveniently another court, under

or more fairly tried in some other court, he shall order that the tain rcumstances.

ci

venue be changed, and that the cause be sent for hearing to such other court; and in such case the clerk of the court in which the plaint was entered shall forthwith transmit by post to the clerk of the court to which the cause is to be sent a certified copy of the plaint as entered in the plaint-book, the duplicate copy of the summons and particulars served on the defendant, and a certified copy of the order for changing the venue ; and The Magistrate of such court shall appoint a day for the hearing, notice whereof shall be sent by the post or otherwise by the clerk to both parties.

83 WHERE in any action the debt or demand claimed consists Balance of account not ex-

of a balance not exceeding Fifty pounds after an admitted set-off of ceeding £60.

any debt or demand claimed or recoverable by the defendant from

the plaintiff, the court shall have jurisdiction to try such action.

84 IN any action in the local court in which the title to any

corporeal or incorporeal hereditament, or to any toll, fair, market, ac,

Title to real property, toll,

or fee of office, shall incidentally come in question, such court shall have power to decide the claim which it is the immediate object of the action to enforce, if both parties at the hearing shall consent, in any writing signed by them or their attorneys, to the court having such power ; but the judgment of the court shall not be evidence of title between the parties or their privies in any other action in that court or in any proceeding in any other court; and such consent shall not prejudice or affect any right of appeal of either of the parties to such first-mentioned action.

85 WHERE in any action of contract brought in the Supreme in certain cases Chief S us -

Court the claim endorsed on the writ does not exceed fifty pounds, tice al y order cause to be

or where such claim though it originally exceeded fifty pounds tried	in local court.
is reduced by payment into court, payment, an admitted set-off, or otherwise, to a sum not exceeding fifty pounds, the Chief Justice of the Supreme Court, on the application of either party, after issue

27° VICTORIX, No. 21.

Small Debts.

joined, may in his discretion, and on such terms as he shall think fit, order that the cause be tried in any local court which he shall name ; and thereupon the plaintiff shall lodge with the clerk of such court such order and the issue, and The Magistrate of such court shall appoint a day for the hearing of the cause, notice whereof shall be sent by post or otherwise by the clerk to both parties or their attorneys; and after such hearing the clerk shall certify the result to the master's office of such Supreme Court, and judgment in accordance with such certificate may be signed in such Supreme Court.

No action on judgment of 86 NO action shall be brought in a local court on any judg.

Supreme Court. ment of the Supreme Court.

If debt or liquidated money87 IN any action in a local court for a debt or liquidated demand exceeds £20. money demand exceeding Twenty-pounds, the plaintiff may, at his

option, cause to be issued either a summons in the ordinary form, or a summons in the form or to the effect given in Schedule A to .this Ordinance numbered 1; provided that if such last-mentioned summons be issued, it shall be personally served on the defendant twelve clear days before the return day thereof, and then if the defendant shall not at least six clear days before such return day give notice in writing signed by himself, his attorney or agent, to the clerk of his intention to defend, the plaintiff may, on or within one month after such return day, without giving any proof of his claim, have judgment entered up against the defendant for the amount of his claim and costs, such-costs to be taxed by The Magistrate, and the order upon such judgment shall be for payment forthwith, or at such time or times, and by such instalments (if any) as the plaintiff, or his attorney or agent, shall in writing have consented to take at the time of the. entry of the plaint.

On notice to defend action 88 , IF the defendant shall give such notice as in the last pre-

heard in ordinary course. ceding' section is specified, the action shall be heard in the ordinary course, but in any event the clerk 'shall immediately after the last day for giving such notice send a letter to the plaintiff by post, stating therein whether the defendant has or has not been served with such summons, and whether he has or has not given notice of his intention to defend.

In certain cases defendant 89 IF in any action of contract the plaintiff shall claim a sum

tried in local court, may object to cause being exceeding Twenty pounds, if in any action of tort the plaintiff shall

claim a sum exceeding Five pounds, the defendant shall give notice that he objects to the action being tried in the local court, and shall give security to be approved of by the magistrate for the amount

27° VICTORLE, No. 21.

Small Debts.

claimed, and the costs of trial in the Supreme Court, not exceeding in the whole the sum of one hundred and fifty pounds, all proceed- ings in the local court in any such action shall be stayed; but if in any such action the defendant do not object to the same being tried by the local court, or shall fail to give the security aforesaid, the local court shall dispose of the cause in the usual way; and the entry of the plaint in such action shall be sufficient commencement of the suit to prevent the operation of any statute of limitation applicable to such claim: provided that nothing herein contained shall prevent the removal of any cause from a local court by writ of

certiorari in the cases and subject to the conditions in and subject to

which such cause may now be removed.

90 IT shall be lawful for the Chief Justice to hear and deter- mine applications for writs of prohibition directed to the magistrates Writs of Prohibi

on.

or local courts aforesaid, and to make rules or orders for the issuing

of such writs.

91 THE granting of a rule or summons to shew cause why a Rules or summons to shew

writ of certiorari or prohibition should not issue to a local court	cause why a writ of cer-
shall, if the Supreme Court or Chief Justice so direct, operate as a	not issue to be a stay oftiorari or prohibition should
stay of proceedings in the cause to which the same shall relate until	proceedings.
the determination of such rule or summons, or until such Supreme Court shall otherwise order ; and the local court shall from time to time adjourn the hearing of such cause to such day as it shall think fit until such determination or until such order be made; but if a copy of such rule or summons shall not be served by the party who obtained it on the opposite party and on the clerk of the local court two clear days before the day fixed for the hearing of the cause, the local court may, in its discretion, order the party who obtained the rule or summons to pay all the costs of the day, or so much thereof as it shall think fit, unless the Supreme Court or Chief Justice shall have made some order respecting such costs.

92 WHERE a writ of certiorari or of prohibition addressed to Notice of writ of certiorari

a local court shall have been granted on an ex-parte application, and	or prohibition having been
the party who obtained it shall not lodge it with the clerk, and	obtained to be sent to clerk.
give notice to the opposite party that it has issued, two clear days before the day fixed for hearing the cause to which it shall relate, the local court may, in its discretion, order the party who obtained the writ to pay all the costs of the day, or so much thereof as it shall think fit, unless the Supreme Court or Chief Justice shall have made some order respecting such costs.

27° VICTORI2E, No. 21.

Small Debts.

Application for writ of pro-	93 WHEN an application shall be made for a writ of pro-
finally disposed of by rule

hibition to a judge shall be

hibition addressed to a local court, the matter shall be finally disposed

or order.

of by rule or order, and no declaration or further proceedings in

prohibition shall be allowed.

Rule or order substituted

04 NO writ of mandamus shall henceforth issue to The Magistrate or ally other officer of the local court for refusing to do any act relating to the duties of his office ; but any party requiring such act to be done may apply to the Supreme Court, upon an affidavit of the facts, for a rule or summons calling upon such magistrate or officer of a local court, and also the party to be affected by such act, to spew cause why such acts should not be done; and if after the service of such rule or summons good cause shall not he shewn, the Supreme Court may by rule or order direct the act to be done, and The Magistrate or officer of the local court, upon being served with such rule or order, shall obey the same upon pain of attachment; and in any event the Supreme Court may make such order with respect to costs as to such court shall seem fit.

for writ of mandamus to a

magistrate or officer of court.

Where judgment does not 9 WHERE judgment has been obtained in a local court for a

exceed £20 court may order	sum not exceeding Twenty pounds, exclusive of costs, the court
payment by instalments; in
other cases consent of plain-	may order such sum and the costs to be paid at such time or times,
tiff necessary.	and by such instalments, if any, as it shall think fit, and all such monies shall be paid into court ; but in all other cases it shall order the full amount for which judgment has been obtained to be paid either forthwith or within fourteen clear days from the date of the judgment, unless the plaintiff, or his counsel, attorney, or agent, will consent that the same shall be paid by instalments, in which case the court shall order the same to be paid at such time or times, and by such instalments, if any, as shall be consented to, and all such monies, whether payable in one sum or by instalments, shall be paid into court.

99 THE precise time when any application shall be made to

Priorti of execu ons issu -

Priority

ing out of local court. any clerk to issue a warrant against the goods of a party shall be entered by him in the execution book and on the warrant ; and when more than one such warrant shall be delivered to the bailiff to he executed he shall execute them in the order of the times so catered.

97 WHEN a writ against the goods of a party has issued Thom

Priority of executions i ssu -

ing out of Supreme court the Supreme Court, and a warrant against the goods of the Sallie

and local court, party has issued from a local court, the right to the goods seizedshall be determined by the priority of the time .of the delivery of the

27° VICTORIT, No. 21.

Small Debts.

writ to the sheriff to be executed, or of the application to the clerk for the issue of the warrant to be executed; and the sheriff, on demand, shall, by writing signed by him, inform the bailiff of the precise time of such delivery of the writ, and the bailiff, on demand, shall shew his warrant to any sheriff's officer, and such writing purporting to be so signed, and the endorsement on the warrant, shall respectively be sufficient justification to any bailiff or sheriff acting thereon.

93 A JUDGMENT summons authorised by the 51st section summons for commitment

may, by leave of The Magistrate, be obtained from the court in which may, by leave of court, issue t

judgment was obtained, although the judgment debtor shall not then	war	oubrttarerich jud° en
dwell or carry on business within the district of such court, if such magistrate shall think fit, in the exercise of his discretion, to grant such leave.

99 WHEN the term and interest of the tenant of any corporeal Possession of small tene- ments may be recovered in

hereditament, where neither the value of the premises nor the rent	local courts by landlords
payable in respect thereof shall have exceeded fifty pounds, by the	where term has expired or
year, and upon which no fine or premium shall have been paid,	been determined by notice.
shall have expired, or shall have been determined either by the land- lord or the tenant by a legal notice to quit, and such tenant, or any person holding or claiming by, through, -or under him, shall neglect or refuse to deliver up possession .acCorclingly, the landlord may enter a plaint, at his option, either against such tenant or against such person so neglecting or refusing, in the local court of the district in' which the premises lie, for the recovery of the same, and thereupon a summons shall issue to such tenant or such person so neglecting or refusing ; and if the defendant shall not, at the time named in the summons, shew good cause to the contrary, then,
0n proof of his still neglecting or refusing to deliver up possession of
the premises, and of the/yearly value and ikent of the premises, and of the holding, and of the expiration or other determination of the tenancy, with the time and manner thereof, and of the title of the plaintiff, if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear thereto, the court may order that possession of the premises men- tioned in the plaint be given by the defendant to the plaintiff, either forthwith or on or before such day as the court shall think fit to name; and if such order be not obeyed, the court, whether such order can be proved to have been served or not, shall at the instance of the plaintiff issue a warrant authorising and requiring the bailiff of the court to give possession of such premises to the plaintiff.

27" VICTORI}E, No. 21.

Small Debts.

In plaint for recovery of 100 IN any such plaint against a tenant as hi the last precedim,

possession plaintiff may section is specified the plaintiff may add a claim for rent or mesneclaim for rent and mesne

profits. profits, or both, down to the day appointed for the hearing, or to any preceding day named in the plaint, so as the same shall not exceed fifty pounds, and ally misdescription hi the nature of such claim may be amended at the trial.

Possession of small tene- 101 WHEN the rent of any corporeal hereditament, where

i moceaaitsemyypehicecro.iezafioar neither the value of the premises nor the rent payable in respect

non-payment of rent. thereof exceeds fifty pounds by the year, shall for one half year be

in arrear, and the landlord shall have right by law to re-enter for the non-payment thereof, he may, without any formal demand or re- entry, enter a plaint in the local court of the district in which the premises lie, for the recovery of the premises, and thereupon a summons shall issue to the tenant, the service whereof shall stand in lieu of a demand and re-entry ; and if the tenant shall five clear days before the return day of such summons pay into court all the rent in arrear, and the costs, the said action shall cease ; but if he shall not make such payment, and shall not at the time named in the summons spew good cause why the premises should not be recovered, then, on proof of the yearly value and rent of the premises, and of the fact that one half year's rent was in arrear before the plaint was entered, and that no sufficient distress was then to be found on the premises to countervail such arrear, and of the landlord's power to re- enter, and of the rent being still in arrear, and of the title of the plaintiff if such title has accrued since the letting of the premises, and of the service of the summons if the defendant shall not appear there- to, the court may order that possession of the premises mentioned in the plaint be given by the defendant to the plaintiff on or before such clay, not being less than four weeks from the day of hearing, as the court shall think fit to name, unless within that period all the rent in arrear and the costs be paid into court ; and if such order be not obeyed, and such rent and costs be not so paid, the clerk shall, whether such order can be proved to have been served or not, at the instance of the plaintiff, issue a warrant authorising and requiring the bailiff of the court to give possession of such premises to the plaintiff, and the plaintiff shall from the time of the execution of such warrant hold the premises discharged of the tenancy, and the defendant, and all persons claiming by, through, or under him, shall, so long as the order of the court remains unreversed, be barred from all relief in equity or otherwise.

Sub-tenant served with 102 WHERE any summons for the recovery of a tenement as

summons to recover posses- hereinbefore specified shall be served on or come to the knowledge

27° VICTORLE, No. 21.

Small Debts.

of any sub-tenant of the plaintiff's immediate tenant, such sub-tenant	sion must give notice to his immediate landlord, who
being an occupier of the whole or of a part of the premises sought	may come in and defend.
to be recovered, he shall forthwith give notice thereof to his immediate landlord, under penalty of forfeiting three years' rack-rent of the premises held by such sub-tenant to such lancllord, to be recovered by such landlord by action in the court from which summons shall have issued, and such landlord, on the receipt of such notice, if not originally a defendant, may be added or substituted as a defendant to defend possession of the premises in question.

108 A SUMMONS for the recovery of a tenement may be In plaints to recover pos-

served like other summonses to appear to plaints in local courts ;	session of premises, how
and if the defendant cannot be found, and his place of dwelling shall	summonses may be served.
either not be known or admission thereto cannot be obtained for serving any such summons, a copy of the summons shall be posted on some conspicuous part of the premises sought to be recovered, and such posting shall be deemed good service on the defendant.

104 ANY warrant to a bailiff to give possession of a tenement Warrants to bailiffs suffi-

named therein, with such assistants as he shall deem necessary, and entering on premises.	shall justify the bailiff named therein in entering upon the premises cient to justify them Sr
in giving possession accordingly; but no entry upon any such warrant shall be made except between the hours of nine in the morning and four in the afternoon.
issued, bear date op the day next after the last day named by the for three months from the 105 EVERY such warrant shall, on whatever day it may be Such warrants to be in force.
court in the order for the delivery of possession of the premises in possession. for delivering
question,question, and shall continue in force for three months from such date, and no longer, but no order for delivery of possession need be drawn up or served.

106 THE court may at all times amend all defects and errors As to amendment of defects

in any proceedings in such court, whether there is anything in writing and. errors of proceedings,

to amend by or not, and whether the defect or error be that of the Sce•

party applying to amend or not ; and all such amendments may be made with or without costs, and upon such terms as to the court may seem fit ; and all such amendments as may be necessary for the purpose of determining in the existing suit the real question in controversy between the parties shall be so made, if duly applied for.

107 ANY affidavit to be used in a local court may be sworn Before whom affidavits may

before The Magistrate without the payment of any fee, or before be sworn.

any other Justice of the Peace.

27° VICTORI2E, No. 21.

Small Debts.

Warrants of commitment, 108 EVERY warrant of commitment which shall issue from

how long to be in force. a local court shall, on whatever day it may be issued, bear date on the day on which the order for commitment was made, and shall continue hi force for one year from such date, and no longer, but no order for commitment shall be drawn up or served.

No officer or party shall be	109 NO officer of a local court in executing any warrant
reason of irregularity.

deemed a trespasser by of a local court, and no person at whose instance any such warrant shall be executed, shall be deemed a trespasser by reason of any irregularity or informality in any proceeding on the validity of which such warrant depends, or in the form of such warrant, or in the mode of executing it, but the party aggrieved may bring an action for any special damage which he may have sustained by reason of such irregularity and informality against the party guilty thereof, and in such action he shall recover no costs, unless the damages awarded shall exceed forty shillings.

Judgment summonses and	110 ANY judgment summons issued out of a local court under
warrants of commitment

sufficient, if in form given	any warrant of commitment in respect of an unsatisfied judgment
in schedule.	or order of a local court, may respectively be in the form or to the effect given in Schedule A to this Ordinance, numbered respectively 2 and 3 ; and all such summonses or warrants .hall be deemed sufficient to justify proceedings under them without any further statement of facts to spew jurisdiction.

THAT the bankruptcy or insolvency of the plaintiff hi

Bankruptcy and insolvency a

tion to abate, if assignees the benefit of the creditors, shall not cause the action to abate, if theelect to continue it. of plaintiff not to cause ac- any action in a local court, which the assignees might maintain for

assignees shall elect to continue such action, and to give security for the costs thereof, within such reasonable time as The Magistrate shall order, but the hearing of the cause may be adjourned until such election is made ; and hi case the assignees do not elect to continue the action and to give such security within the time limited by the order, the defendant may avail himself of the bankruptcy or insolvency as a defence to the action.

Flow securities under local112 -WHERE, by this Ordinance, a party is required to give

court Ordinances to be security, such security shall be at the cost of the party giving it, and

given. in the form of a bond, with sureties, to the other party or intended

party in the action or proceeding: Provided always that the court in which any action on the bond shall be brought may, by rule or order, give such relief to the obligors as may be just, and such rule or order shall have the effect of a defeasance of such bond.

27° VICTORI2E, No. 21.

Small Debts.

113

WHERE, by this Ordinance, a party is required to give security; he may in lieu thereof deposit with The Magistrate if the	where security is. required
to be given, a deposit of
security is required to be given in a local court, or with the master	money be given in lieu
of the Supreme Court if the security is required to be given in such court, a sum equal in amount to the sum for which he would be required to give security, together with a memorandum, to be approved of by The Magistrate or master, and to be signed by such party, his attorney or agent, setting forth the conditions on which such money is deposited, and The Magistrate or master shall give to the party paying, a written acknowledgment of such payment ; and The Magistrate when the money shall have been deposited in the local court, or the judge of the Supreme Court when the money shall have been deposited in the Supreme Court, may, on the same evidence as would be required to enforce or avoid such bond as in the last preceding section is mentioned, order such sum so deposited to be paid out to such party or parties as to him shall seem just.

114 WHERE any claim shall be made under section 65, to Claimant of goods taken in

or in respect of any goods taken in execution under the process of	execution must deposit theircosts
a local court, the claimant may deposit with the bailiff either the	iv iVA.ue;possession, otherwise
amount of the value of the goods claimed, such value to be fixed by	goods shall be sold.
appraisement in case of dispute, to be by such bailiff paid into court, to abide the decision of the court upon such claim, or the sum which the bailiff shall be allowed to charge as costs for keeping possession of such goods until such decision can be obtained, and in default of the claimant so doing the bailiff shall sell such goods as if no such claim had been made, and shall pay into court the proceeds of such sale, to abide the decision of the court as aforesaid.

115 THE clerk of every court holden under this Ordinance Minutes of proceedings to

shall cause a note of all plaints and summonses, and of all orders be kept.

and of all judgments and executions and returns thereto, and of all

informations, sentences, and other proceedings of the court to be

fairly entered from time to time in books belonging to the court,

which shall be kept at the office of the count; and such entries in

the said books and copies thereof and purporting 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 whatsoever, as evidence of such

entries, and of the proceeding referred to by such entry or entries;

and of the regularity of such proceeding, without any further proof.

or officer of the court for the time being during the sittings or contempt. 11$ IF any person shall wilfully insult the court or any clerk Power of committal for

27° VICTORIAE, No. 21.

Small Debts.

attendance in such court, or in going or returning from such court, or shall wilfully interrupt the proceedings of such court or otherwise misbehave in court, it shall be lawful 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 court shall be empowered, if such court shall think fit, by a warrant of the said court to commit any such offender to any prison to which the court has power to commit offenders under this Ordinance, for any time not exceeding seven days, or to impose upon any such offender a fine not exceeding Five pounds for every such offence, and in

default of payment thereof to commit the offender to any such

prison aforesaid for any time not exceeding seven days, unless the

fine be sooner paid.

Penalty for assaulting 117 IF any officer or bailiff of any court holden under this

officer, or rescue.	Ordinance shall be assaulted while in the execution of his duty, or if any rescue Shall be made or attempted to be made of any goods levied under process of the court, the person so offending shall be liable to a fine not exceeding Twenty pounds, to be recovered by order of the court, or before a Justice of the Peace in a summary
way ; and it shall be lawful for the bailiff of the court or for any
peace officer in any such case to take the offender into custody (with or without warrant), and bring him before such court orJustice accordingly.

Court to determine charges /Is IF any clerk, bailiff, or officer of the court acting under

against its officers. color or pretence of process 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 neglect, connivance, or omission, or misconduct in his office, it shall be lawful for the court to enquire into such matter in a summary way, and for that purpose to summon and enforce the attendance of all necessary parties in like manner as the attendance of witnesses in any case may be enforced, and to make such order thereupon for the repayment of any money extorted, or for the due payment of any money so levied as aforesaid, or for the payment of such damages and costs as the court shall think just; and also, if the court shall think fit, to impose such fine upon the clerk, bailiff, or officer, not exceeding Twenty pounds for each offence, as shall be deemed adequate; and in default of payment of any money so ordered to be paid, payment of the same may be enforced by such ways and means as are herein provided for enforcing a, judgment recovered in the said court.

27" VICTORI1E, No. 21.

Small Debts.

payable on proceed; gs in the local courts, and, except bailiffs fees, 119 THE several fees specified in Schedule B hereto shall be Fees in proceedings.

shall be handed over by The Magistrates so nominated and appointed as aforesaid, into the colonial treasury from time to time, for the public uses of the Colony, and in support of the Government thereof ; and all such fees shall, except in interpleaders, or where such fees shall be payable in respect of keeping possession, or selling goods seized, be paid in the first instance by the party in whose behalf any such proceeding is to be taken ; and in default of payment of any fees, payment thereof shall by order of The Magistrate be enforced by such means as might be employed to recover any debt adjudged by the said local court to be paid; and a table of all fees shall be posted in some conspicuous place in every court house, and in every clerk's office ; provided that the Governor with the advice of the Executive Council from time to time may vary, lessen, or increase the fees of court payable under this Ordinance and substi- tute other fees in lieu thereof, and may order entirely new fees in proceedings hereafter authorised in such courts.

concerning any of the matters aforesaid shall be quashed or vacated want of form. 120 NO order, verdict, or judgment or other proceeding made No proceedings vacated for

for want of form.

be incorporated with and taken to form a part of this Ordinance, 121 SECTION G of "The Shorteni Lt, Ordinance, 1853," shall shortening Ordinance.

to all intents and purposes and in as full and ample a manner as if the said section had been introduced and fully set forth in this

Ordinance.

the first day of January next after the passing thereof.	122 THIS Ordinance shall come into operation from and after
123 THAT this Ordinance may be cited as " The Small Debts

Ordinance, 1863."

J. S. HAMPTON,

GOVERNOR AND COMMANDER-1N-CHIEF.

Passed the Legislative Council,

this 22nd day of July, 1868.

G. E. HAMPTON,

Clerk of the Council.

27° VICTORLE, No. 21.

Small Debts.

SCHEDULES REFERRED TO.

Schedule A.

No. 1.

Summons to obtain judgment by default on personal service.

No. [of plaint].

In the [title of court issuing summons].

[Seal]. Between LB., plaintiff,

and

C.D., defendant.

[Name, description and address of defendant].

Take notice, that unless at least six clear days before the [day of appear-

ance to summons], you return to the clerk of this court at [place of office] the

notice given below, dated and signed by yourself, or your attorney, or your agent, you will not afterwards be allowed to make any defence to the claim

which [name, description, and address of plaintiff] makes on you, as per

margin, the particulars of which are hereunto annexed;	z
but the plaintiff may, without giving any proof in sup- claim
port of such claim, proceed to judgment and execution.
If you return such notice to the cleric within the time Tee for plaint .........
specified, you must appear at a local court to be holden Attorney's costs

at , on the day of , 186 , at the

hour of in the noon, to answer the above Total =mini of I

debts amlco sts

claim, which will be heard on that day.

Dated this day of , 18 .

Clerk of the Court.

( See back).

27° VICTORI}E, No. 21.

Small Debts.

Notice of intention to defend.

No. [of plaint].

In the [title of court].

A.B. v. C.D.

I intend to defend this cause.

Dated this day of , 18 .

* lame must be signed the name of defendant, or of his attorney or agent, and in either of the last two cases the words "Attorney for" or "Agent for" must be added.

[To be endorsed on the summons].

If you pay the debt and costs, as per margin on the other side, into the clerk's office, before the day of hearing, and without returning the notice of intention to defend, you will avoid further costs.

If you do not return the notice of intention to defend, but allow judgment against you by default, you will save half the hearing fee, and the order upon such judgment will be to pay the debt and costs forthwith, [or, by instalments, to be specified, as in plaintiff's written consent].

If you admit a part only of the claim, you must return the notice of intention to defend within the specified time ; and you may, by paying into the clerk's office the amount so admitted, together with costs proportionate to the amount you pay in, six clear days before the day of hearing, avoid further costs, unless the plaintiff at the hearing shall prove a claim against you exceeding the sum so paid.

If you intend to rely on a set-off, infancy, coverture, a statute of limitations,

or 'a discharge under a bankrupt or insolvent ordinance, as a defence, you must,

in addition to the notice of intention to defend, give to the clerk notice of such special defence six clear days before the day of hearing ; and such last-men- tioned notice must contain the particulars required by the rules of the court, and you must deliver to the clerk as many copies of such notice as there are plaintiffs, and an additional copy for the use of the court. If your defence be a set-off, you must, with the notice thereof, also deliver to the clerk a statement of the particulars thereof. If your defence be a tender, you must pay into court, before or at the hearing, the amount tendered.

Summonses for witnesses and the production of documents may be obtained gratis at the office of the clerk of this court.

27° VICTORIX, No. 21.

Small Debts.

Hours of attendance at the office of the clerk of this court at [place of office] from ten till four.

This summons must be served personally on the defendant twelve clear days before the day appointed for the hearing.

No. 2.

Summons for Commitment.

In the [title of court issuing summons.]

[Seat]

No. [of summons.]

No. [of fitdgment or order.]

Between A.B., plaintiff,

and

C.D., defendant.

Whereas the plaintiff obtained a judgment [or, if no judgment has been obtained, or if a fresh order has been obtained upon a judgment, an order]

against you in the local court of , on the day of

186 , for the payment of £ for debt [or, damages], and for costs, upon which judgment [or, order], and the subsequent process issued thereon, the sum of R. is now due you are therefore hereby sum- moned to appear personally in this court at [place where court holden], on th e day of , 18 , at the hour of o'clock in the noon, to be examined by the court touching your estate and effects, and the circum- stances under which you contracted the said debt [or, incurred the said damages], and as to the means and expectation you then had, and as to the means you still have of discharging the said debt [or, damages], and as to the disposal you may have made of any property. And take notice, that if you disobey this summons the court may commit you to prison.

Dated this day of , 18 . •

Clerk of the court.

Hours of attendance at the office of the cleric of this court [place of office]

from ten till four.

When issued under this Ordinance, insert

"Issued by leave."

27° VICTORIX, No. 21.

Small Debts.

No. 3.

Warrant of Commitment.

In the [title of court ordering committal.]

[Seal.] No. [of commitment.]

No. [of judgment summons.]

Between A.B., plaintiff,

and

C.D., defendant.

To the bailiffs of the said court, and all peace officers within the jurisdiction of the said court, and to the governor or keeper of the [prison used by the

court.]

Whereas the plaintiff obtained a judgment [or, order] against the defendant

in the local court of on the day of , 186 , for the

payment of £ for debt [or, damages] and costs, upon which judgment

[or, order], and the subsequent process issued thereon, the sum of 2

was at the date of the issuing of the summons hereinafter mentioned and still

is, due :

And whereas a summons was, at the instance of the plaintiff, duly issued out of this court, by which the defendant was required to appear at this court on the day of , 186 , to answer such questions as might be put to him pursuant to Section 51 of the Ordinance, 27 Vict., No. 21, of 1863, in

relation to such debt [or, damages], which summons was proved to this court

to have been personally and duly served on the defendant.

27° VICTORI2E, No. 21.

Small Debts.

And whereas this court, at the hearing of the said summons, ordered that

the defendant should be committed to prison for days, for [as the case

may be] not appearing pursuant to such summons, or alleging a sufficient

excuse for not so appearing.

[or, for refusing to be sworn];

[or, for refusing to answer such questions as aforesaid to the satisfaction

of the ];

[or, for contracting the said debt under false pretences, or by means of fraud, or breach of trust, or without reasonable expectation of being able to

pay the same];

[or, for making a gift or transfer of part of his property, with intent to defraud his creditors];

[or, for having charged, or removed, or concealed part of his property with intent to defraud his creditors];

[or, for not having satisfied the said judgment and costs, having had suffi-

cient means and ability so to do];

These are therefore to require you, the said bailiffs and others, to take the defendant, and to deliver him to the governor or keeper of the [prison used

by the court], and you, the said governor or keeper, to receive the defendant,

and him safely keep in the said prison for days from the arrest under

this warrant, or until he shall be sooner discharged by due course of law.

Dated this [insert elate of order] day of 18 .

E. F. The Magistrate, or two other Justices forming the court.

d.

. . ..

Amount remaining due ..... ..... .... r:

Poundage for issuing this warrant .... ....

Total..... ,..

This warrant remains in force one year from the date thereof.

This form to be applicable to all judgments recovered at the hearing, or by default, or by consent, and to all orders within the jurisdiction of the court.

27° VICTORI T, No. 21.

Small Debts.

B.

List of Fees to be taken in Proceedings in Court.

MAGISTRATE'S FEES: Under Up Up

210 to £30 to £50

s. d. R s. d. £ s. d.

For trial of any action .. 0 5 0 0 15 0 1 0 0

„ Interlocutory hearing..	0 2 6	0 5 0	0 10 0
„ Hearing on any appli-

cation and Order thereon 0 2 6 0 5 0 0 10 0

Taxing costs 0 1 0 0 1 6 0 2 0

DLERIC'S FEES:-	Under	Up to	Up to
£10	230	£50

£ s. d. R s. d. 2 s. d.

Entering every action orl

plaint, filing particulars,

issuing summonses, and	0 1 0	0 2 0	0 3 0
copy for service

Entering appearance 0 1 0 0 1 6 0 2 0

Filing any document 0 0 6 0 1 0 0 1 6

Every search 0 0 6 0 0 6 .0 0 6

Issuing summons and copy} 0 1 0 0 1 0 0 1 0

for witness

Entering cause for trial	..	0 1 0	0 2 0	0 3 0
Trial of cause and entering 1

judgment 0 2 0 0 2 6 0 3 6

Order, rule, or notice	0	1	0	0	1	6	0 2	0
Writ of .execution, commit- 1	0 1	0	0 1	6	0 2 0

ment or arrest

Receiving and paying 1

money out of Court 0 1 0 0 1 0 0 1 0

Replevin Bond 0 2 6 0 5 0 0 7 6

27° VICTORIE, No. 21.

Small Debts.

BAILIFF'S FEES :— Under Up to up to

210	ISO	150
s. d.	s. d.	8. d.

Serving any summons, rule,

notice, or order in town-	0 1 0	0 1 6	0 2 6
site

Executing writ of execution, 0 5 0 0 7 0 0 10 6

commitment, or arrest

Poundage, 3 per cent. on the amount raised and paid into Court

All other incidental expen- ses of seizure, keeping possession and sale, sub- ject to review of The Magistrate

Mileage Is. per mile one

way only.

In all cases not herein provided for, such fees as the Magistrates shall allow, in accordance with the rules of Practice of the said Courts.

By Authority: RICHARD PETHER, Government Printer, Perth.