Small Debts Recovery Act 1912 (NSW)

Act No. 33, 1912.

A l l Act to consolidate the Acts relating to the	S m a u ,
llucovicitY .

P k r t s

Eecovery of Small Debts in Courts of P etty	“ —-
Sessions. [2(h// November, 1912.]

lE it enacted by the King’s Most Excellent Majesty, by and with

tli-o advice and consent of the Legislative Council and Legislative

Assembly of New South IVales in Parliament assembled, and by the

authority of the same, as follows

PAET I.

. Pr.ELIMIXAKY. ■

X. This Act may be cited as the “ Small Debts Recovery Act, short title.

1912,” and is divided into Parts, as follows .

PAET I.—Peelimin.vry—ss. 1-C.

PAET II.—JuHismcTiON—

'Amount—s. 7.

Gene rally—ss. 8-12.

Locality—ss. 13-10.

Lffect of jnclynn III - s. 17. ■

PAET

182   Act No. 3.S, 1912.

Small Debts Recovery.

PAET III.—Pboceduke—

Actions, how commenced—ss. 18-24.

Default summons and procedure thereon—ss. 25-30.

Default of appearance—ss. 31-33.

Judgmoit on confession or agreement—ss. 3 4 -3 6 .

Setting aside judgment—s. 37.

Appearance by attorney or agent—s. 38. .

ijj , Costs-—s. 39.

/

Judgments, how recorded—ss. 40, 41.

Enforcement of judgments and orders—ss. 42-51.

Interpleader—ss. 52, 53.

Attachment of debts—ss. 54-64.

" Amendment—s. 65.

Witnesses—ss. 66, 67. *

■ ' Officers—ss. 68-72. ■ ’

PAET IV.—Miscellaneous—ss. 73-79.

Repeal of Acts. 2 . Tlio Acts mentioned in the First Schedule to this Act are to

Saving clause. extent therein expressed hereby repealed.

Notwithstanding the repeal of the Acts hereby repealed:—

All courts established at the commencement of this Act shall be deemed to have been established for the purposes of this Act and all officers appointed under the Acts hereby repealed and in office at the commencement of this Act shall remain in office, and shall be deemed to have been appointed under this Act.

The limits of the petty sessions districts existing at the time of the passing of this Act, shall be deemed to have been defined here­ under.

All rules made under the authority of any Act hereby repealed and being in force at the time of the jiassing of this Act shall bo deemed to have lieen made under the authority of this Act.

Any form referring to any Act hereby repealed shall be as good and valid for all purposes under this Act as it would have been under such repealed Act immediately prior to the passing of this Act.

AppiicaUon of Act. 3 ̂ Tlus Act shall 1)0 iu foi’cc and apply to all parts of the

No. 1.1,1899, s. 3. 8>tate.

Act No. 3.3, 1912. 183

Small Debts Recovery.

4 . Tiie Governor may by proclamation in the Gazette define Power to dofme

the limits of any petty sessions district for the purposes of this Act,

and after any such i)roclamation has been published in the Gazette the 13 ̂ g

provisions of tliis Act shall bo in force, and the jurisdiction and other	’	’
powers hereby conferred shall be exercisable within the limits of any petty sessions district defined in such proclamation.

5 . Courts of petty sessions shall be courts of record, and the Courts ot petty

judgment of-any of the said courts may be set up as a defence in iiny o T re c o rd b e courts

action brought either iu any of the said courts or in the Supreme Court, m d .s . 5.

6 . I n this Act, unless the context or subject matter otherwise interpretation,

indicates or requires

“ Admitted set-otf ” means set-off admitted by the plaintiff at the No. is, i905, s. 2.

time when he brings the action.

“ Court ” means a court of petty sessions.	No. 13,1899, s. 6.
“ Court of petty sessions ” means—

' (a) any two or more justices of the peace sitting for the pur­

, ■

poses of this Act at the usual place of meeting of justices in

petty sessions;

(b) one justice of the peace when so sitting in cases where, by isid. this Act, a single justice is authorised to adjudicate;

(c) a police magistrate when so sitting in cases where, by this /nd.

■ Act, he is vested with exclusive jurisdiction;

(d) a police or stipendiary magistrate when so sitting in any rnj.

■ case where a police or stipendiary magistrate is authorised,

■ in the absence of other justices, to do alone whatever may

•••' ■ be done by two or more justices sitting in petty sessions;

(e) A stipendiary magistrate wlieu so sitting in his own district under any Act whereby sti]iendiary magistrates are vested with exclusive jnrisdidion in ])otty sessions.

“ Garnishee ” means a person who is indebted to a judgment

debtor.

“ Garnishee order ” means an order directing the attachment of a debt duo, owing, or accruing from a garnishee to answer a judgment debt.

“ Prescribed ” means prescribed by this Act or rules made rud.

thereunder.

“ Eegistrar ” moans the registrar of a court of petty sessions.

“ Stijiendiary magistra.te ” includes a deputy stiiiendiary m a g i s - N o . is, i905, s. 2.

trate.

r .u iT

184   Aot No. 3-3, 1912.

Small Debts Recovery.

• PAET II.

J U B I S D I C T I O N .

Amount.

7 . (1) Save as hereinafter provided, all courts now established or that may hereafter be established .“̂hall, within their respective districts, have power and authority to hear and determine in a summary Yv’ay, and according to equity and good conscience (against persons liable as hereinafter mentioned to be summoned to such court, and every defendant sued jointly vrith sudi persons), all actions whatsoever—

No. 13, 1890, s. 7.

No. IS, riOl. s. 1. (a) for the recovery of any debt or liquidated demand not exceeding thirty pounds, whether on balance of account, or alter admitted set-off, or otherwise;

No. l.'i, 1S'J9, 7. (1)) for the recovery of any unliquidated debt to an amount in any

case not exceeding thirty jiounds;

Ihid.	.	(c) for the recovery of any demand or damage, other than debt, whether liquidated or unli(paidated, to an amount in any case not exceeding ten ])ounds, or (where the party intended to bo sued by writing under his hand cousent.s thereto) to an amount not exceeding thirty pounds.
̂

.StipomUiiryor police	(2) A stipendiary or police iiiagiatrato sitting in. some place
imie;istrate spcci:dly

appointed.	appointed in that behalf by the Governor shall, in addition to the power
No. 13, ISOO, s. 9.	and authoritj' conferred l./y subsection one of this section, have power
No. 13, i;;or>, s. 4.	and authority to hear and determine as aforesaid all actions under subsection one (a) of this section to an amount iu any ca.se not exceeding fifty pounds.

One iu.stiec. (d) (i) One justice of the peace, sitting outside the boun­

No. 1.3, 1S99, 3, S.	daries for tile time being of the metronolitan police district, sliall have
No. 18, 190.'), s. 4.	power and authority to hear and determine as aforesaid all cases—

(a) in which the plaintiff seeks to recover no more than the sum of five ])Ounds;

' (b) ill which the sum in dispute exceeds five but does not exceed thirty })ouiids, and botli parties consent thereto.

U,kl. (ii) The consent of the parties shall be specially entered

in the record book at the coiniuencement of the hearing.

H id.

(iii) Every such case shall be proceeded with in every resjiect as if the same were heard and determined by two or more justices.

Ihid.

(iv) AVhere the sum sued for is claimed on balance of account, the jurisdiction confcrrcil by this sulisection shall bo exorcised ordy if tlie aiiimuil:' crc'dilcd to tlie derendant in such account have been admitted liy tlm dcreudaut befere action bi'ought.

sum.s no t exi-tvdino

N o tes Ol- dills fol'

S . bi case i!ie (lefendani in nny a<lion apjxrir.s to lm\-e givmi

liiils of exchange (U' lU'oinissory notem for the* ])ayment of any debt

m oun t of court 's

uT'isdiction.	originally above the amount of jurisdiction created liy tliis Act, but
No. 13. ISOn.^s. 10.	wliiil) l)ills or note: ,'U'o re)iaraf!‘ly security for a sum not exceeding

the

Act No. 33, 1912. 185

Small Debts Recovery.

tlie aiiioimt of .jurisdiction of the court iu which the action is tried, cadi hill or note shall he regarded as foruiing a distinct and sejiarate contract, and may be sued upon and recovered in the same way as any other debt recoverable under this Act.

9. Any doctor of medicine or other legally rpialified medical Power oAmdicai

practitioner may sue for the recovery of any fees or other remuneration

as such ])ractitioner in like manner as any sui'geon or other ])erson may	1905 ̂ g
sue for the recovery of any debt or demand under this Act.

1 0 . Kvery attorney, soliidtor, or other ofiicer of the Supreme oiiicers of Sninenie

Court shall be subject to the several processes, orders, .judgments, a n d “"’'“'"'"'d-

executions of the courts of petty sessions in the same manner as other

persons are subject to the same.

1 1 . No court shall have jurisdiction in any of the following LimitiiUon of

__ jurisdiction.

cases:

(1) Where the matter in question relates to the tidiing of any No. i:i, nsn, s. 11.

duty to llis Majesty or any fee of oflice or to any annual rent or other math'r in whidi rights in fr.t.ure may be bound or to any general right or duty.

{'!) Where tlie debt sought to bo recovered is for any money or thing vron at or liy means of any race, match, wager, raffle, or any kind of 'play or game.

(3) A\'here the debt or claim has arisen more than six years before /.w. ami No. is,

the issuing of the summons unless there hath been in writing an acknowledgment of or promise to jmy the same within that ])eriod.

(d)

In re.spect of any contract for tlie sale of goods unless the No. 1.3, isoi), s. 11. something in earnest to hind the bargain or in part pa.vment, or some note or memorandum in writing of the bargain has been signed by the party sought to he charged by such contract or his agent thereunto lawfully authorised.

(5) In cases of trespass to land if the title to the freehold therein Jiid.

be bona fide in dispute between the parties.

1 2 .                It .shall not be lawful to split or divide any cause of action Actions not to be

for the purpose of bringin.g the stune within the jurisdiction of any court	Uhl. a. 12.
of petty sessions, and in case it ajipears to the said court at any stage of the procet'dings that any cause of action has lieen so siilit or divided such court shall dismiss the action brought thereupon with costs.

Place n-hcre action may l>e hyouglit.

13, (1) Actions for debt may be brought either in the court I'm-di-bt.

holdcn in and for the district where the defendant in such action carries No. 13, imw, s. is. on business or u.'Uall.v rcsidirs, or iu tin* court holden in and for jlu; No. is, iiio.i, s. 30.

district iu which the di‘l)t sued for was contracted. (l’)

186   Act No. 33, 1912.

Small Debts Recovery.

For damages. (2) Actions for damage shall be brought in the court

No. 18, 19 )u, e. 30.

holden in and for the district where the defendant in such action carries

on business or usually resides.

Party liable for

If any party, after having in one district incurred a liability for in another district previously to the issuing of a summons for the recovery of such damage, the plaintiff may summon the defendant to the court holden for the district iu which such liability for damage was incurred originally, in the same manner as if he had continued a resident of such district.

damage removing to

another district.

any damage rccoveralde in the courts of petty sessions becomes resident

No. 13, 1899, 8. 18.

Where promise	(3) In case the defendant in any action has given an
made to pay in a

particular place.	engagement or promise in writing to pay any debt or sum in a particular
Ihid,	place specified the plaintiff may cause such defendant to be summoned to attend the court holden in and for the district within which the place so specified is situated.

Application of	(4) This section shall apply where there are two or more
section to joint

defendants.

persons jointly liable all residing -within the jurisdiction of the same

Ihid. and No. 18,

court, but in oases where all the persons jointly liable do not reside

1905, y. 31.

within the jurisdiction of the same court the plaintiff may proceed as

directed in tlie next following section.

Pow er to determ ine

questions as to (.5) Whenever any question arises as to the district in

defendan t’s residence.

No. 13, 1899, s. 18.

which the defendant is a resident the same shall be determined by the

court of petty sessions as incident to the cause.

W here jo in t defendants

reside in different	1 4 . (1) Where there are two or more persons jointly liable, all
districts.

Ib id . 8. 10, and

of whom do not reside within the jurisdiction of the same court, the

No. 18,1005, s. 31.

P laintiff may serve

l)laintiff may bi’ing his action before any court within the jurisdiction

unv one.

Ibid.

of which any of the persons jointly liable resides by serving any such

person with a summons in the manner hereinafter directed.

Defendant served

may notify others.

(2) The person upon whom the plaintiff serves the sum­

mons may serve the other jicrsons jointly liable with a notice of such

H id. ^

summons in order that tliey may appear and join in defending the action.

Action to proceed

although other (3) If the other persons jointly liable do not appear and

defendants do not

join in the defence the action may ]:iroceed and judgment he obtained

appear.

and execution issued against the person who has been served with the

Ihid.

plaintiff’s summons, although Ihe other persons jointly liable have not

either been served with any summons or joined in the defence.

No plea in abate-

mentfornon-joinder. (4) Xo plea in abatement shall be allowed for nor advan­

Ihid.	tage be taken of the non-joinder of a person jointly liable.
Riprht to contribution

from jo in t defendant?.	1 5 . n ) The person against whom execution is issued shall
No. 18, lOOf), s. 31.

No. 13, 1800, s, 20, and

rdaiii any light which lu' may have to demand eontribution from the

other persons jointly liable.

Judgment in action (2) If .such person causes the other jiersoiis jointly liable to

when evidence.	1)0 personally served with a copy of the plaintiff’s summons upon him
Ihid.	in tile action tiiree davs hei'ore thi' day appointed for a])])eariug and answering to the. same the judgment recoverei] against him in the action

or

Act No. 33, 1912. 187

Small Debts Eecovery.

or a copy tliereof, certified by the registrar, shall be admissible iu evidence iu any action for contribution afterwards brought b}̂ liim against the other persons jointly liable for the purpose of proving their liability to such contrihution.

( 3 ) If such person does not cause the other persons jointly ivoof of liability to

liable to bo personally served as aforesaid, then their liability to contri-

button sJiall be proved in the ordinary manner. jjo ^

Chavye of venue.

16. (I) If a court is satisfied that any action or other pro-Change of venue,

ceeding therein pending can be more conveniently or fairly tried or	s- 21.
determined by some other court, it maj' order that the venue be changed, and that the action or proceeding be sent for hearing to such other court.
(2) If a court or any member of a court is interested iu the matter of any action or proceeding pending in such court, it shall not hear and determine the action or proceeding except with the consent of the jiarties, and shall at the request of the plaintiff order that the venue be changed, and that the action or proceeding be sent for hearing to the nearest court at which it may conveniently be tried or determined.

( 3 ) Where a venue is changed, the registrar shall forthwith

transmit by post to the registrar of the court to which the action or proceeding is to be sent for hearing all documents in his possession relating to the action or proceeding.

(4) Such last-mentioned court shall appoint a day for the hearing, notice whereof shall be sent by the registrar, by post or otherwise, to the parties, and shall hear and determine such action or liroceeding.

Judgment final and conclusive.

1 7 . All judgments and orders of a court of petty sessions shall Decision of court of

be final .and conclusive: '

Provided that in actions for trespass to land where the right to n,). 13, isso, 3. 13.

the possession is shown to be in dispute, and in actions for rent not being between the original jfarties to the letting where the right to receive or the liability to pay such rent is in dispute, and in actions for contribution to the erection or repair of any dividing fence where the defendant’s liability to contribute is in dispute, the judgment of the court as to such right or liability shall be conclusive only as to the particular act of trespass or amount of rent or contribution then in question, and shall not be taken to determine any of those questions generally between the parties.

PART

188   Act No. 33, 1912.

Small Drhfs Becovery.

PAET III.

PROCF.DrUE.

Plaint anrl .summons.

Plaint.

No. 13, 1809, s. IT).	1 8 . (1) Every action shall be commenced by a plaint in writing.
Contonts of plaint.

Ihid. (2) The plaintiff shall, in bis plaint, shortly and in sub­

Second Schedule,

stance set forth bis cause of action, and shall also state the place of bis

No. 1.

abode (or the place of abode of bis attorney if be sue by an attorney)

and the place of abode of the defendant.

I ’articulais. (3) The items constituting the i)artieiilars of claim sbali be

Ihid. aitpcnded to the ])laint or .stated and filed therewith.

Filing.	(4) The plaintiff shall cause bis plaint to be filed with the
Ibid.

Second Schedule,	registrar of the court at wbicb the adioii is to be tried at the proscribed
No. 2.	time liefore the sitting of the said court, and the registrar shall annex the plaint or a eojiy thereof to a copy of the summons hereinafter mentioned, and shall retain the same in court.
Snninums.
Ihid. 8. IG, and	19 . The original summons or a dii])licate thereof shall be served on the defendant, either iiersoiially or by delivering the same to the wife or servant of tlie defendant at the defendant’s usual place of abode.
No. IS, 1905, 3. 29.
Service of summons.	2 0 . In ease the me.sseiiger or bailiff employed to servo the summons demands admittance into the bouse wliere the defendant usually resides and such admittance is refused, be may put such sum­ mons or duplicate thereof into the bouse, or fix it upon the door of the house, and such service shall be good service upon the defendant.
No. 19, 1S99, s. 17.
Actions by infants.

No. 19, 1S99, s. 29, 2 1 . Whenever any wages or any other sum whatsoever not

and No. 18, 1905,

exceeding the sum of fifty pounds is due to any person under the age

8. 4 (2).

of twenty-one years, such person may sue for and recover such debt in

any court of petty sessions in the same manner as if he were of full age.

Act ions by executors

and administrators.

2 2 . (1) E.xocutors and administrators may sue and be sued iu the courts of petty sessions, and judgments which have been obtained by plaintiffs but not satisfied previous to tlieir decease, as well as all causes of action, sliall survive to their i)ro]ier personal re]iresentativo, who may sue out execution in his own name in the same way that the plaintiffs themselves, if living, might have doin'.

No. 1.9, 1899, 3. 21.

[}'j.n parfp. DroKiiy (2) A ])laiiitilf suing as executor or administrator shall so

Knox 920. J ue.seribe himself in the plaint tiled.

Actions by trustee s. 23o A iilaintiff suing as (ruslee shall so describe himself iu tlio

ihid. 25. plainl filed.

Actions by ollicial

assigTiccs or trustees 2 4 . -V plainlil'f suing as ollicial assignee or trustee of a bank-

I'lipt nr iii-̂ dlvciM l̂iji'l .s.) (U'si r’d.i' !di!5,-;eir in tlie jjhii'if lik'd.

of b.inkrupts. Ihid. s. 2U. J'(‘ fau lt

Act No. 3:3, 1912. 189

Small Debts Recovery.

Definill s)mimons and procedure thereon.

25. Ill aclioii in a I'.ouri for tlio roeovory of a, dolit or Default summons,

liquidated doinand, vrilh or 'ivitliout interest, the ])laintiff may, in lion of No. is, u)o,j, s. 7. the Hninnions hen'inhefoi-o mentioned, cause to he issued a summons in Second Schedule,

the form number four in the Second Schedule hereto.	Such summons	'
is hereinafter referred to as a default summons.

2 6 . A default summons or duplicate thereof shall, when }irac- .Service ot default

summons.

ticable, be served personally on the defendant:	Ihid. s. S.
Provided that where prompt iiersonal service cannot be effected on a defendant, and a stipendiary or police magistrate is satisfied by affidavit that reasonable efforts have been made to effect such service, and that—

(a) the defendant wilfully evades service of the summons; or

(b) the summons has been served in the manner directed by sections nineteen and twenty of this Act;

such magistrate may order, on such conditions as may be thought fit,

that the iilaintiff may ])roceed as if personal service had been effected.

2 7 . Notice of the grounds of defence to an action in which a Ground of defence

default summons has been issued shall be in writing in the form lodgliV iU i* '""

proscribed, signed )jy the defendant or his attorney, and shall, together registrar,

with an affidavit verifying it, or stating such facts as the court in the	s- 0.
circumstances deems sufficient in that behalf, be tiled in duplicate 'tvltli

the registrar.	’ "
The registrar sliall forthwith communicate any ground of defence so filed to the plaintiff or his attorney by posting the notice to, or bĵ leaving it at, his residence or usual place of abode or business.

23. Ifj in such action, the defendant docs not, within ton days ,T,„igmcnt in default

after personal service on him of :i default summons, or where service

has not lieen i^ersonal within fourteen days after leave to proceed as

aforesaid, file notice of grounds of defence and affidavit as aforesaid,

the plaintiff within three months after the exjiiration of the time for

filing such notice, upon filing, an aflidiivit of personal service, or of an

order of leave to proceed, ;md an account of what he claims to be due

'

to him verified l)v the oath of the iilaintiff, liis attorney or agent, may iiave judgment entered up by the court or registrar against the defendant for the amount of the claim, and a sum for costs to be prescribed. Where judgment has been entered up by the court or the registrar under this section the court may, on the application of the defendant, direct tlu' said amount and costs to be paid at such times and by such instalments as it may think fit.

29. AVhere in any such action the defendant has filed a notice Trial,

of grounds of defence and affidavit as aforesaid, tlie action shall go to md-s. 11.

trial at the next sittings of the court held not less than four clear days

after the day on which such notic'e w;is hied. • ■ • ’ 30.

190   Act No. 33, 1912.

Small Debts Recovery.

Defence lodged after 30. The defendant may, at any time before judgment, file with

N̂ '̂ is 190 ̂ 1*’ registrar notice of grounds of defence and affidavit as aforesaid.

' ’	’ •	When sudt notice and affidavit are filed after the time mentioned in section twenty-eight the defendant may be let in to
defend— ,

(a) if the plaintiff consents in writing thereto; or ’ -"!

: (b) by leave of the court upon filing an affidavit disclosing a

..	defence on the merits and sati.sfaetorily explaining the neglect,
’	and upon such terms as the court thinks fit.

Default of appearance.

Where plaintiff does 31. (1) If thc plaintiff does not appear in any action, and the

brnonsuUed'' defendant appears according to the summons, the court may nonsuit

Ibid s 14 plaintiff or enter a verdict for the defendant.

W hen defendant (2) If upon the day of the return of any summons, or at

admits claim. adjournment of the court or of the cause for which the summons

No. 13,1899,8.21 (2).

issued, the plaintiff does not appear when called upon and the

defendant appears and admits the cause of action in full or in part, the

court may, if it thinks fit. proceed to give judgment according to such

admission. ,

If plaintiff does not	32. If upon the return day of any summons, or at any adjourn­
appear a sum iray

be awarded to	ment of the court or of the cause in which the summons was issued,
defendant.	the plaintiff' does not appear, the court may (when the defendant appears
Ibid. 3. 27.	and does not admit the claim or demand) award to the defendant by way of costs and satisfaction for his trouble and attendance such sum as in its discretion it thinks fit. , /jjy

By defendant. 33. If on the day named in the summons, or at any adjourn­

Ibid. s. 22 (1).	ment of the court or cause in which the summons was issued, the
Trial may be
proceeded with	defendant does not appear, or does not by some one on his behalf
ex parte.	sufficiently excuse his absence, or neglects to answer the claim or demand, the court may. upon due proof of service of the summons, proceed to the 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.

Judgment on confession or agreement.

Statement of	3 4 .	(1) In any action—
confession or

agreement may be (a) the defendant may sign a statement confessing the amount of

made, signed.	the debt or demand for which the plaint has been issued, or
No. 18, 1905, s. 15.	any part thereof; or - j

(1̂)

Act No. 1912. 191

Small Debts Recovery.

(b) the plaintiff and defendant may sign a statement of any

r> :	agreement upon tb(̂ amount of such debt or demand, and of
1. ■	'H-	the terms and conditions upon which the same is to be paid or satisfied.

(2) Any such statement shall be signed in the presence of

the registrar of the court in which such plaint has been entered, or of

an attorney, or a justice of tiu' ])eace.

3 5 , The registrar shall receive such statement of confession or statement received

agreement as aforesaid, and shall, as soon as convenient thereafter, jjfjgnS enter!) i

send notice of any such confession to the plaintitf.	up.
On such statement l)cng so received, and (Ui ]ti'o<>f l>y allidavit of the signature or signatures of the party or parties who signed such confession or agreement where such signature or signatures were not made in the presence of the registrar, the court or registrar may enter up judgment in the terms of such statement.

3 6 . In any action for a debt or liquidated demand, judgment lyiieie judvmcnt

by default or confession against one or more of several defendants shall

not preclude the plaintiff from proceeding to judgment and issuing

s. 17.

execution against any other defendant or defendants, except in so far

as satisfaction by any of them operates in favour of all.

Setting aside judgment.

3 7 . The court, on sufficient cause being shown, may, on such Judgment may be set aside.

terms as it thinks lit, set aside any judgment entered up iti the absence

Ibid. s. 13.

of thc defendant, or for neglect to file notice of grounds of defence, and

any execution thereupon, and let in the defendant to defend.

'Appearance by attorney or agent.

3 8 . (I) In all actions the jfiaintiff and the defendant may each Parties may appear

appear by himself, his clerk, or servant, or an attorney of the Supreme 5.\“e7k“jî 'attmnry

Court. No. 13,1899,3.29(1).

(2) No attorney practising before a court of petty sessions Attomey’.s fees, ,

shall demand or take more, by way of fees for work by him done, than

the sums set forth in the Third Schedule hereto. Third Schedule.

(3) If it appears to a court of petty sessions that any Attorney or agent

attorney or agent has, in any cause in such court, practised corruptly, prohibited *

contemptuously, or in any respect knowingly and wilfully against his^j-^ ̂ gg'

duty as an attorney or agent, the court may make an order (to remain

with the registrar of the said court) either suspending such attorney or

agent from yiractising for a syiecified time or prohibiting such attorney

or agent from practising for ever in such court. ,

Costs.

192   Act No. 83, 1912.

Small Debts Recovery.

. Costs.

Pinoess an.i 39. Tu nil nctions or ]n'orcc(lIn,<??, in a eonrt ilio ooiirt may

witnesses’exponsos; ĵ |,p suecossfiil partv, l)v Way of costs for court process and

))iiitession iil co sts . ■ ■ t •

No IS 1005 3 ‘J4 nttendanco ot witnesses, sucli sum as m its discretion it tliinks iit; but No. i:i, 1S90, costs of professional assistance shall be paid by the party requiring

“9 (-)• such professional assistance.

Jadgmoits—hoiv recorded.

Entry of judgment.	40. The entry of the .judgment on the cause list of the court of ])otty sessions shall be deemed and held to be a record of such judgment, and thc same or a certified copy thereof, under the hand of the clerk of such petty sessions shall (on proof of such signature and of the identity of the claim and iiartics) be received as evidence of such judgment.
No. 1.0, ISOn, s. 0‘2,
.Judgment not to bo	41. Save in the case of judgment entered up under sections bo recorded by any court of petty sessions in any case unless upon proof, by affidavit, of the service of the summons upon thc defendant in the manner directed by sections nineteen and twenty of this Act. Such affidavit may be sworn before thc registrar, or a commissioner of affidavits, or a justice of the peace.
recorded witliont
allidnvit of service.	twenty-eight, or thirty-five, or seventy-five of this Act, no judgment shall
U id. a. 33.

' Enforcement of judgments and orders.

Paymodit hy 42. (1) A court of petty sessions, whenever it makes an order

in.stalnicnts.	or decision for the payment of money, may direct such money to be paid
No. in, 1S99, s. 81.	at such times and by siudi instalments as it thinks fit.

Default in payment (2) If default i.s made in the ])ayment of any one such

of instalment.	instalment execution may be had for thc whole amount remaining due
Ihid.	upon the judgment.

Execution of	43. (1) AVhenever any court of jietty sessions makes any order
process.

Ihid. s. 35.	or decision for the payment of money the registrar of the said court
Second Schedule,	may, on the application of the ]iarty in whose favour such order or
No. 6.	decision was made, issue a pre(*c])t in the nature of a writ of fieri facias, which precept shall be directed to any baililY of any of the said courts or his deputies, who are hereby empowered to execute tlie same in any part of the State in the same manner in all respects as process of a similar nature issuing out of the Supreme Court may be executed by the sheriff or deputy sheriff.

Where defendant	(2) Tile removal by any defendant, after judgment
removes into

another district	recovered against him, from the jurisdiction of one court into the
after judgment	jurisdiction of another shall not prevent any plaintiff from proceeding
obtained.	against such defendant in the jurisdiction where such defendant happens
Ihid.	to be resident at the time of issuing execution, and the bailiff of any

court

Act No. 33, 1912. 193

Small Debts Recovery.

court or liis deputy may dispose of the goods of such defendant in like manner as if he were a resident of the district in which judgment was recovered against him.

44. AVhere a court adjudges costs to the defendant he sliall bo Defendant entitled

entitled to the like process of execution for his costs as the plaintiff

would he entitled to if ho had established his claim against tliê TQ jg 15996. 36,

defendant.

45.    (1) Where a judgment or order of a court of petty sessions Certificate may issue

for the iiayment of money has been entered up or made in favour of ’•aspect of

̂ ,1 . , ,, T i.- 1 I. 1 • unsatisfied judgment

any person, the registrar, upon the application of such person or of his or order,

solicitor or agent, shall, on proof that a warrant of execution on s u c h No. is, 1905, s. 27.

.judgment or order has been returned unsatisfied in whole or in jiart, Schedule,

issue and deliver to such person, solicitor, or agent a certificate in the	'
form in the Second Schedule or to the like effect, and shall make a minute or memorandum thereof against the entry of the judgment on the cause list.

( 2 ) Such person may file, or cause to be filed, the said Certificate may bo

certificate in any district court having jurisdiction within the district of such court of petty sessions, or having jurisdiction where the judgment debtor resides.

(0 ) Thereupon, without any further or other process, execu- Execution may issue

tion may bo issued out of such district court in the same manner ag upon a judgment or order of such court for the sum mentioned in such certificate to be unpaid, together witli the fees paid for the certificate to the registrar of the court of petty sessions and the fees paid in tlio district court for filing the certificate and issuing execution, and the prescribed sum for costs.

(4) After tlie issue of such certificate no further ijroceed-No further

ings shall be taken in the court of petty sessions in respect of such

judgment or order.

(5) AVhen such certificate has been filed in the district court ProvisionsofDistrict all the jirovisioiis of the District Courts Act, 1912, relating to proceedings Courts Act to apply, consequent on a judgment or order given or made in a district court shall

apply as if the judgment or order of the court of petty sessions were a

judgment or order of the district court.

46. (1) The registrar of any court shall grant a special writ of Special writs,

execution when demanded by the plaintiff or defendant, as the case m a y No. 13, 1899, s. 37.

be, in any suit wherein such writ may be issued.

( 2 ) The registrar shall appoint one or more special bailiffs Registrar to appoint

nominated by the applicant to execute such writ. special bailiff.

(3) The party obtaining the apiDointment of a bailiff to act Party applying to

under any special writ shall, together with two sufficient sureties, executeS"'® security.

to the registrar of the court from which the writ issues a bond in the

penalty of fifty pounds or for a larger sum not exceeding one hundred

pounds if the said court shall so direct, conditioned for the proper

performance by the bailiff of the duties of his office. _ _ (4)

194  Act No. 33, 1912.

Small Debts Recovery.

Bond to vest in (4) The bond shall vest in the registrar of the court for the

registrar.	time being, and may from time to time be sued upon in his name or in
Assignment of bond.	the name of any person to whom it may be assigned imder any order
of the court. ■

Mode of assignment. (5) The assignment of the bond shall be made by an

indorsement by the registrar for the time being.

Damages for

misconduct of (6) Any person who sustains any damage by the neglect

special bailiff.	or misconduct of any such bailiff may proceed before any court of competent jurisdiction (the amount of such damage not exceeding fifty pounds or the sum specially directed by the court as aforesaid), and the bond so given shall stand and be an additional security for such damages, and shall, if necessary, be put in suit to recover the sum and costs from the parties thereto or any of them.
Registrar and courts

bailiffs not to be (7) In every case in which a special writ of execution is

responsible.	taken out neither the registrar nor bailiffs of the courts of petty
10 Vic. No. 10, s, 32.	sessions shall be responsible for any act done under or in respect of such process by colour thereof, but the person aggrieved by any such act shall have a remedy and right of action against the party or his sureties to whom the writ of execution was granted.
Execution in six
years without	47. During the lives of the parties to a judgment in any court, within a year and a day without a scire facias, and within six years from the recovery of the judgment, execution may issue without a revival of the judgment.
revival.	or those of them during whose lives execution may at present issue
No. 18, 1905, s. 18.
Time when execution
may be made.	48. No judgment of any of the courts of petty sessions shall be executed at any time after sunset and before sunrise, and if any person executes any such judgment after sunset and before sunrise he shall be liable to a fine of ten pounds, which may be imposed and enforced by an order of the court for the distress and sale of the offender’s goods.
No. 13, 1899, s. 38.
Rights of landlords.	49. No execution awarded against the goods of any party shall deprive any landlord of the power vested in such landlord by an Act passed in the eighth year of the reign of her late Majesty Queen Anne, entitled “ An Act for the better Security of Bents and to prevent Frauds committed by Tenants,” of recovering one year’s rent in pursuance of the said Act.
Ihid. s. 39.

Realty and	5 0 . No real or leasehold property shall be liable to be levied
leaseholds.

Ihid. s. 41. upon under writs of execution issued out of courts of petty sessions.

Property comprised 51. (1) No absolute or conditional bill of sale or mortgage of

in a bill of sale.	chattel property whatever shall protect such property so levied upon
Ihid. s. 43.	from sale unless—

(a) the bill of sale or mortgage be produced to the bailiff; and

,(b) the bill of sale or mortgage was executed at least fourteen days before the summons was served upon the defendant in the case in which the writ of execution issued; and

' ‘ ̂ (c)

Act No. 33, 1912. 195

Small Debts Becovery.

(c)

there be expressed in the bill of sale or mortgage a certain time for the payment of the principal sum for which the instrument was given as security, and such time does not exceed one year from the date of the instrument and at the expiration of that time the holder of the bill of sale or mort­ gage shall not renew it, hut either assume possession or proceed to the sale of the property so secured, or relinquish all claim to the protection of it from the debts of other creditors under judgments recovered under this Act or any Act hereby repealed; and

(d)

the bill of sale or mortgage was registered by the registrar at the nearest court of petty sessions within one week of the date of its execution.

Notwithstanding the provisions of this subsection the party entitled Levy may bo thereto may proceed to enforce the levy and sale by taking out a special gpeSwrit writ of execution in manner directed by section forty-six of this Act.

(2) Protection from sale under any circumstances shall Limit of protection, only extend to such articles of chattel property as are specifically set No. is, isos, s. S2. forth and enumerated in a schedule to be annexed to the bill of sale

or mortgage, as the case may be. ,

‘ ' Interpleader. ..... '

52.                 (1) If, previously to the sale of any property levied upon. Claim by person not

such property being in the actual or ostensible possession of the party executX'Sued.*'°'"

against whom the writ is directed, a claim is made to it by any third	g, 40,
person, and such claim is deposed to before a justice of the peace, and in such deposition it is averred that the party in whose actual or osten­ sible possession such property so levied upon be found is not the true owner, but the bailee thereof, the claimant—■

(a)

may deposit with the bailiff an amount equal to the value of No. is, 1905, s. 20. to abide the decision of the court upon the claim; or

(b) may give to the bailiff security to the value of the property. lUd.

(2) The amount of such value and the nature of such lOd.

security shall be agreed upon between the claimant and the bailiff, or in case of difference shall be determined by some competent person appointed by the registrar, and the costs (if any) of such determination shall be paid by the claimant, and, if the court so orders, may be aidded to the costs of the levy.

(3) If the claimant, iireviously to the sale of such property. No. 13, 1899, s. 42.

deposits with the bailiff the amount aforesaid, or gives security as aforesaid, such property shall thereupon, but not otherwise, be released from execution, and the cost of the levy (if any) shall be either added to the amount of the costs charged in the execution or defrayed by the party claiming such property, as the court in its discretion directs.

53,

196  Act No. 33, 1912.

Small Debts Recovery.

Interpleader. 5 3 . (1) Whenever a claim is made by a person not being the

No. 13, 1899, s. 40.	party against -whom execution has issued to any goods or chattels taken
No. 18, 1905, s. 19.	or intended to be taken in execution under any process or to the pro­ ceeds or value thereof, the court from which the process issued, or, in the absence of the court, the registrar or a justice of the peace, may, upon the ap])lcation of the bailiff or officer made before or after the return of such process, and as well before as after any action brought against him, call before the court, by an order for that purpose, the party issuing the iirocess and the claimant.
No. 13, 1899, s. 40.	(2) The court may thereupon pronounce its decision in a summary manner for the adjustment of the claim, and the relief and protection of the bailiff or other officer, and may make such order as appears to be just according to the circumstances; and its decision shall be final and conclusive against the party issuing the process and the claimant, and also against all persons claiming by, from, or under them.

Attachment of debts due from garnishees.

Examination of 54. (1) Any creditor who has obtained a judgment in any

judgment debtor as

to debts due to him.	court of petty sessions may apply to the court in which he obtained such
No. 13, 1899, s. 44,	judgment, or, when the court is not sitting, to the registrar thereof or a
and No. 18, 1905,
8. 25.	justice of the peace, for an order that the judgment debtor be orally
Second Schedule,	examined as to whether any and what debts are owing to him, and the
No. 9.	court, or, when it is not sitting, the registrar thereof or a justice of the peace, may thereupon make an order for the examination of such judg­ ment debtor and for the production of any books or documents.

Penalty for (2) Every judgment debtor who refuses or neglects to

disobeying order.

obey such order shall be subject to all the penalties to which a witness

No. 13, 1899, 8. 44.

duly subpoenaed to attend at such court, and failing to appear at the

time appointed, would be subject.

lu a . (3) The court shall cause such judgment creditor to be

orally examined touching the premises.

Police magistrate. 55. (1) Save where therein otherwise provided, the jurisdic­

No. 1.3, 1899, s. 45.

tion given by the seven next following sections shall be exercisable only

by a police magistrate.

No. 18, 1905, a. 26.

(2) Wherever in the said sections it is provided that when the court is not sitting any application, order, direction, or summons may be made to and granted by the registrar thereof or a justice of the peace, any such order, direction, or summons so made shall be of the same effect as if made by the court.

Garnishee orders. 56. (1) The court or, when it is not sitting, the registrar

No. 13, 1899, a. 46,	thereof or a justice of the peace, may make an order that all debts due,
and No. 18, 1905,
s. 26.	owing, or accruing from a garnishee residing within the jurisdiction of
Second Schedule,	such court to a judgment debtor shall be attached to answer the judg­
No, 11,	ment debt. . . . . ............... . .

. ................... (2)

n ^

o r r̂ , s tv G

Act No. 83, 1912. 197

Small Debts Recovery.

(2) An application for a garnishee order may be made ex Application for

parte by any creditor who lias obtained a judgment in any court of petty sessions, either before or after such examination as is provided in section fifty-four.

(3) The application shall be supported by an affidavit of Affidavit in support,

the judgment creditor, or his attorney or agent, stating that the judg­ ment has been recovered and is still unsatisfied, and to what amount, and that a person resident within the jurisdiction of the Court to which the application is made is indebted to the judgment debtor.

(4) In proceedings to obtain a garnishee order the court Cmu-t may refuse to

or, when it is not sitting, the registrar thereof, or a justice of the i^eace, certain

may, in its discretion, refuse to interfere where, from the smallness of aj„i no. is,

the judgment debt or of the amount to be recovered or of the debt i‘J05, s. 2(i.

sought to be attached or otherwise, the remedy sought would be

inadequate, worthless, or vexatious.

(5) No order for the attachment of wages or salary of any Wages or salary of

servant or employee shall be made in any case where such wages or

salary do or does not exceed the rate of two pounds per week; and where attached,

such wages or salary are or is at a greater rate than two pounds per No. o, 1900, .s. i.

week, an order shall be made only for the attachment of amounts of the

wages or salary in excess of that rate : Provided that no debt contracted

prior to the seventeenth day of August, in tlie year one thousand nine

hundred, shall be affected by this subsection.

57. The court or, when it is not sitting, the registrar t h e r c o f to

or a justice of the iieaco may, by the garnishee order or any subsequent eause!''̂ '"'

order, summon the garnishee to appear to show cause why he should

not pay to the registrar, on behalf of the judgment creditor, the debt

due from him to the judgment debtor, or so much tliereof aS may be

sufficient to satisfy the judgment debt.

58. Service on the garnishee of a garnishee order or notice to Attachment of debts

the garnishee of the making of such order shall attach in the hands of

the garnishee all debts due, owing, or accruing from him to the judgment	’	>	s-	•
debtor.

50. If the garnishee docs not forthwith pay to the registrar, on I’roceedings to levy behalf of the judgment creditor, the amount duo from him to the judg- i|a"ni”w 't o

ment debtor, or an amount equal to the judgment debt, and does not judgment debtor,

dispute the debt due or claimed to be due from him to the judgment

debtor, or if he does not appear upon summons, then the court may

order execution to issue, and it may be sued out accordingly Avithout	’	'
any other previous writ or process to levy the amount due from such garnishee in payment of the judgment debt or towards satisfaction of the same.

GO. If the garnishee appears upon summons and disputes his where garnishee

liability the court, instead of making an order that execution shall issue, ‘''sputeiî babiiity.

may order the hearing of such summons to stand adjourned until some , ,

T Second Schedule,

day No. 14.

198   Act No. 33, 1912.

Small Debts Recovery.

day to be appointed for that purpose, and may direct that, upon such adjourned hearing, any question necessary for determining the liability of the garnishee be tried and determined, and the order for snch adjournment shall be served upon the garnishee, and shall operate as a plaint entered against him to obtain payment of the sum claimed to be due from him to the judgment debtor.

Payment by 61. In any order for the payment of money by a garnishee.

instalments.

No 1.3 1899 s 46f4) npon an application at any time made by him, the court, or,

and No. 18,’1905, ’ wheu it is uot sitting, the registrar thereof or a justice of the peace,

may direct such payment to be made at such times and by such instal­ ments as the said court or registrar or justice of the peace, as the case may be, thinks fit, and if default be made in the payment of any one such instalment execution may issue for so much of the amount then due by the garnishee as will satisfy the judgment debt remaining impaid at the time of such default.

Discharge of	62. Payment made by or execution levied upon the garnishee under any proceeding herein provided shall be a valid discharge to him as against the judgment debtor to the amount paid or levied, although such proceeding may be set aside or the judgment reversed.
No. 13, 1899, s. 51.
Garnishee book to
be kept.	63. (1) Id each court of petty sessions presided over by a police magistrate the registrar shall keep a garnishee book, in which entries shall be made of all garnishee orders and proceedings thereon, with names, dates, and statements of the amounts recovered.
Ihid. s. 52.
(2) Copies of any such entries may be taken by any person upon application to the registrar, and upon payment of the prescribed fee.
Costs in garnishee	6 4 . The costs of any application for a garnishee order and of in the discretion of the court, but where the garnishee pays all debts due, owing, or accruing from him to the judgment debtor, or so much thereof as is sufficient to satisfy the judgment debt, into court five clear days before the return day of the summons he shall not be liable for any costs incurred by the judgment creditor.
proceedings.	any proceedings arising from or incidental to such application shall be
Ibid. s. 31.

garnishee.

^Amendment.

Ihid. s. 62.

6 5 . (1) No process or proceeding of any court of petty sessions shall be set aside on account of any technical error or mistake only.

(2) I t shall be competent to every court of petty sessions to decide what is a verbal or technical error or mistake in any action or proceeding.

(3) All errors or mistakes which have not a tendency to

misinform or mislead the opposite party shall, in all cases, be deemed

merely verbal or technical. .

Witnesses

Act No. 33, 1912. 199

Small Debts Recovery.

' Witnesses.

6 6 . (1) Every person summoned as a witness to attend any of Attendance of

the said courts of petty sessions shall attend pursuant to such summons, witnesses, and shall be subject to the like actions (to be brought in one of the said T * i * 1 1 I T T iS gCOIIQ SCilCQUlG,

courts) tor disobeying such summons as he would be subject to tor nq. 8.

disobedience to a subptena issuing out of the Supreme Court.

(2) Nothing in this Act contained shall be construed to Expenses,

compel the attendance at any court of petty sessions of any witness lUd.

who is not resident in the district where the cause in which he is

summoned to give evidence is to be tried, nor to compel any witness to

go more than three miles from his home, without tender of his reasonable

expenses.

6 7 . Every court of petty sessions may punish as for contempt Penalty for refusing

in a summary way by fine not exceeding forty shillings, to be levied

upon tlie goods and chattels of the offender, or by imprisonment for

54

any time not exceeding fourteen days, any jilaintiff, defendant, or

witness refusing to bo sworn or to answer any lawful question.

Officers.

6 8 . The clerk of the bench or other clerk of the courts of petty clerk ami registrar,

sessions, as may from time to time be directed by such courts	s. 55.
respectivelj', shall discharge the duties of registrar.

6 9 . (1) The courts of petty sessions shall from time to time Bailiffs,

appoint a bailiff or bailiffs for the service and execution of the processes, ind. 3. 56.

orders, and judgments authorised by this Act.

(2) Any such courts may appoint a sergeant of police or Police sergeant or

police constable of their respective districts to be a bailiff of the court	“
appointing him, who shall not therefore become incapable of acting as or forfeit his apjiointment of such sergeant or constable, anything in any Act to the contrary notwithstanding:

Provided that no such sergeant or constable shall be appointed

without his consent.

7 0 . If any bailiff, deputy bailiff, or other officer of any court of Breach of duty in

petty sessions employed to execute any process of execution, by conniv- execution,

mice, wilful neglect, or omission, causes or suffers the goods of the party

lUd. 8. 57.

against whom such execution is awarded to be rescued or carried away, so that such execution has not its due effect, any justice of the peace may, upon complaint and due proof thereof made upon oath, order such bailiff, deputy, or officer to pay the sum of money for which such execu­ tion was awarded, or such part thereof as the said justice thinks proper, to the party complaining, and may enforce the payment thereof by the same means as are herein provided for the recovery of debts.

200   Act No. 33, 1912.

Small Debts Recovery.

Indemnity to

officers.	7 1 . All justices of the peace, officers of courts of petty sessions, keepers of prisons, or other persons who do anything under this Act in obedience to any legal order of any court of petty sessions, are hereby indemnified for whatsoever is done by them respectively in obedience thereto, and if any action is brought against any such keeper, or person, or justice, or officer for perfoianing any duty of his office in pursuance
No. 13, 1899, s. 58.
Officer m.ay plead	of this Act, such justice, keeper, officer, or other person may plead
general issue and
give special matter in	the general issue, and give the special matter in evidence thereupon,
evidence.	and if the plaintiff be nonsuited or discontinue his action, or a verdict pass against him or judgment be had for the defendant upon demurrer, such defendant shall have double costs.
against officers.
Limitation of actions	7 2 . All actions for anything done under the provisions of this Act or any Act hereby repealed by persons acting in execution thereof shall be commenced within six months after the fact was committed, and no writ shall be sued against nor process served upon any justice of the peace, registrar, bailiff, or other officer of any court of petty sessions for anything done in the execution of or by reason of his office until one month after notice in writing has been delivered to him or left at his nsual place of abode by the attorney or agent for the party who intends to sue out such writ as aforesaid, in which notice shall be clearly and explicitly contained the cause of action, the name and place of abode of the person bringing such action, and the name and place of abode of the attorney or agent.
Ibid. a. 59.
A fee of twenty shillings and no more shall be paid for preparing and serving every such notice.

PAET IV.

M is c e l l a n e o u s .

Perjury, 73. (1) Whosoever commits wilful and corrupt perjury or

Ihid. s. GO. falsely affirms when under examination by a court of petty sessions by virtue of this Act, or commits wilful and corrupt perjury in false swearing or affirming in any affidavit or affirmation by this Act required or allowed to be made before any such court or a justice of the peace, shall on conviction be liable to incur and suffer the like pains and penalties as any person convicted of wilful and corrupt perjury.

Court of petty (2) A court of petty sessions may commit for trial and

sessions may commit. ^ prosccutiou foi’ pcrjuiy to be forthwith instituted against any

person who commits perjury or falsely affirms as in the last preceding

subsection mentioned.

Proceedings may not	74. No phiiiit entered ill a court of petty sessions, nor any order
be removed.

Hid. s. 61.

or proceeding had thereon by virtue of this Act, shall be removed out of

the said court bv writ of certiorari or otherwise howsoever.

Act No. 33, 1912. 201

Small Debts Recovery.

7 5 . If both parties in any cause agree between themselves not Arbitiatin.i

to try their cause before the court of petty sessions, but by means of

arbitration, and notify such agreement by a memorandmn in writing, ju<igment.

signed by themselves or their agents, the award made on such arbitra- No. i.s, is;)a, s, C3.

tion shall be binding on both parties, and judgment in accordance

therewith may be entered in the cause list of the said court of petty

sessions for the plaintiff or defendant as the ease may be.

76. six, and thirty-seven of the Supreme Court and Circuit Courts Act, 1900, The provisions of sections thirty-four, thirty-five, th i r t y - C o u r t foes to be

relating to the collection of the fees to be demanded and paid in the	' ’	’ •
Supreme Court, shall mutatis mutandis apply to the fees to be demanded and paid in any court of petty sessions acting within the jurisdiction conferred by this Act.

7 7 . (1) No court fees, except fees in respect of the copying of Court foes not

documents, payable to a registrar shall be charged to or ]>ayable by the expenditure is paid out of the Consolidated Eevenue Fund.

(2) But the said Government department or board may

include the amount of such fees in any costs v.diidi it may be entitled

to receive from any person, and may recover the same as if such fees

had been charged and paid; and when recovered such fees shall be paid	'
to the registrar and accounted for by him as directed by the Audit Act,

1902.   ‘

78. The forms contained in the Second Schedule hereto, or Forms.

as near thereto as tlie nature of the case will permit, shall be used in Second Schedule,

proceedings under this Act.

7 0 .                The Governor may make general rules to be in force in the Rules made by

several districts for carrying out the provisions of this Act, and the

_

procedure and xu’actico of courts of iiettj^ sessions under this Act, and

may in and by such rules alter any forms in any Schedule to this Act.

Such rules shall have the same force and effect as if they formed

part of this Act.

SCHEDULES.

202   Act No. 33, 1912.

Small Debts Recovery.

SCHEDULES.

" FIRST SCHEDULE, v

Reference to Acts. Title or Short Title. Extent of Repeal.

No. 13, 1899 ... Small Debts Recovery The whole, except—

Act, 1899.	(a)	Section 64, portion of 65 and the Third Schedule (which were repealed by No. 14, 1904, s. 2).
(b)	Sections 21 (1), 22 (2), 28, 30, and the remainder of section 65 (which were repealed by No. 18, 1905, s. 3).
(c)	Section 67 (which was repealed by No. 24, 1909, s. 27).

No. 6, 1900 ... Attachment of Wages So much of the Act as refers to the attach­

Limitation Act, 1900. ment of debts in courts of petty sessions.

No. 14, 1904 ... Justices (Fees) Act, So much of Schedule as refers to Act No. 13,

1904.  1899.

No. 18, 1905 ... Small Debts Recovery The whole.

Amending Act, 1905.

No. 24, 1909 ... Justices (Amendment) Section 27.

Act, 1909.

No. 13, 1899. SECOND SCHEDULE.

Second Schedule.	FoEMS.
1. Plaints.

IX TH E CASE OF GOODS SOLD.

“ A.B., of {Sydney, in this district) complains of C.D., of the same place, baker, that the said C.D. is indebted to him in the sum of five pounds sterling for corn (or hay, or other things, hriefly describing them) sold and delivered by the said A.B. to the said C.D. in or about the month of February last, which sum the said C.D. refuses to pay, and the said A.B. prays that he may be adjudged to pay the same.”

f IX TH E CASE OF DEMAND FOE RENT.

“ For throe months’ rent due from the said C.D. to the said A.B. on or about the first of February last in respect of the occupation by the said C.D. of a house and garden of the said A.B. (as the case may be), situate at Sydney, which sum,” &c.

FOR LODGING.

“ For meat, drink, washing, lodging, and other things found and provided by the said A.B. for the said C.D. between the months of December and February last, which sum,” &c.

FOR HIRE OF HORSES.

“ For the hire of a horse (or as the case may be) and cart of the said A.B., hired and used by the said C.D. for three weeks in or about the month of February last, which sum,” &c.

FOR

Act No. 33, 1912. 203

Small Debts Becovery.

FOR AGISTMENT.

“ For the agistment, depasturing, and keeping of fifty oxen and one hundred sheep by the said A.B. for thc said C.U. between the months of December and February last.”

FOR WORK AND LABOUR.

“ For the work and labour of the said A.B. performed for the said C.D. on or

about,” &c.

FOR WORK AND LABOUR OP SERVANTS.

“ For the work and labour of the servants of and belonging to the said A.B. per­ formed for the said C.D.”

FOR WORK AND LABOUR OP SERVANTS, HORSES, AND CARRUGES.

“ For the work and labour of the said A.B. by himself (or his servants, or horses, carts, and carriages, as the case may ie ) , performed by the said A.B. (or his servants, <fic.) for the said C.D., and for timber, nails, &c. (as the case may he), provided by the said A.B. for the said C.D., and used in such work and labour.”

FOR WAGES.

“ For wages due and payable from the said C.D. to the said A.B. for his service performed as the servant of the said C.D. between the months of December and February last.”

FOR MONEY LENT.

“ For money lent by the said A.B. to the said C.D. in or about the month of

February last.”

ON A PROMISSORY NOTE OR BILL OP EXCHANGE.

“ For principal and interest duo to the said A.B. on a promissory note drawn by the said C.D., payable to one E.F., or order, and by him indorsed to the said A.B. (or on a bill of exchange drawn by one E.F., and accepted by the said C.D., payable to the said A.B.).”

ON A BOND.

“ For principal and interest due on a bond bearing date the day

made and entered into by the said C.D. for the payment of £ and interest on

the day of last.” > ,i

FOR MONEY DUE ON AN AGREEMENT.

“ For principal and interest upon and by virtue of a certain agreement bearing

Sate, &c. (date of agreement), and made between &c., whereby the said C.D. agreed for

the consideration therein mentioned to pay to the said A.B. the sum of £ ,

together with lawful intcrets on thc same on the day of now past.”

ON AN AWARD.

“ For money due to the said A.B. upon and by virtue of a certain award made by E.F. upon a submission by the said A.B. and the said C.D. to the arbitration of thc said E.F. concerning certain matters in difference between them, and upon which refer­ ence the said E.F. awarded and ordered that the said O.D. should pay the sum of £

to the said A.B. on a certain day now past.”

FOR UNLAWFUL DETENTION OF PROPERTY.

“ A.B., of , complains that C.D., of the same place, hath possessed himself

of a cow (or waggon or horse or other thing detained) of the value of £ or there­ abouts, which he unjustly detains from the said A.B., and the said A.B. prays he maybe adjudged to restore to him the said cow, &c., or pay the value of the same.”

FOR

204   Act No. 33, 1912.

Small Debts Recovery.

I FOR UNLjVWFUIi DETENTION OF PROPERTY DEPOSITED.

“ That the said A.B. in or about the month of last deposited and left

several articles of household furniture and wearing apparel, the property of the said A.B., of the value of £ or thereabouts, with the said C.D., to be safely kept for the said A.B. until he should have occasion for them, and the said A.B. saith that he has demanded thc said household furniture, &c. (or caused the same to be demanded for him), but the said C.D. refuses to deliver up and unjustly detains the same, and the said A.B. prays thc said C.D. may be adjudged to restore to him the said household furniture, &c., or pay him the value of, thc same.”

FOR D.^MAGE SUSTAINED BY IMPROPER DRIVING.

“ That on or about the day of last the said A.B. (or the servant

of the said A.B.) was driving his cart, &c., on the public road between and

and the said C.D. (or the servant of the said C.D.) was also on the said road with a certain carriage, &c., under his care and direction, and the said C.D. (or the servant of the said C.D.) so improperly drove and directed his carriage and horses that thereby his carriage was forced and driven wuth great violence against the cart of tho said A.B. and broke to pieces one of the wheels thereof, and the said A.B. was thereby damaged to the amount of £ , and the said C.D. refuses to make amends for tho same, and the said A.B. prays he may be adjudged to pay tho amount of the said damage.”

FOR AN ASSAULT OR INJURY TO TH E PERSON, W IFE, &C.

“ That the said C.D. on, &c., assaulted, beat, and ill-treated thc said A.B. (or

‘ the wife ’ or ‘ child ’ or ‘ servant ’ of the said A.B.) to the damage of the said A.B. of

£ , and the said A.B. prays,” &c.

FOR BRE.AKING AND DESTROYING FENCES, &C., AND FOR INJURIES TO LAND OR CATTLE.

“ That the said C.D. on or about the day of broke down and

destroyed a fence of the said A.B. at Sydney, in the district, whereby the said

A.B. hath sustained damage to the amount of £ , &c. [or ‘ broke down the door of the house of the said A.B. and disturbed him in the peaceable possession thereof,’ or ‘ cut down two trees of the said A.B. of the value of £ ,’ or ' wrongfully trampled down, destroyed, and ate the corn or grass of the said A.B.,’ or ‘ drove about and injured the sheep or cattle,’ or ‘ killed or wounded a dog, horse, &c.,’ of the said A.B., of the value

of £ ’1, and the said A.B. prays,” &c.

No. 13, 1899. 2. Ordinary Summons.

Second Schedule. New South Wales.

In the Court of petty sessions for "I

the district j

To of . ■

You arc hereby summoned to apiwar in this Court at on , the

day of next, at ten of the clock in the forenoon of thc same day

precisely, to answer the following plaint [insert copy of plaint and particulars as filed with the registrar'], otherwise, upon proof of the due service of this summons, the cause when called on for hearing may be tried, and judgment be given against you for whatever maj- appear to be due together with such costs as the Court may think fit to award. And take notice that, if you intend to defend upon any matter of set-off or excuse, you must file particulars of the same iu the office of the Eegistrar clear

days

Act No. 33, 1912. 205

Small Debts Becovery.

days at the least before the day herein named for the hearing of the cause, otherwise the evidence you may bring forward to support such excuse, or set-ofi, cannot be admitted.

Dated this day of , one thousand nine hundred and .

By the Court,

A.B. Eegistrar.

3. Defence to Ordinary Summons, , Rules 7, 13,

~ ~ " " New South Wales. Gazette, 25 May, 1910.

Court of potty sessions for the I day of No. 13, 1899.

district of j 19 . Second Schedule.

I A.B. Plaintiff •

Between ■' and .

( C.D. Defendant.

Take notice that I intend to defend this action for the following reason [or

reasons as the case may be]—

•'̂ nd	\State each ground as shortly as possible, hut with sufficient clearness, particu-
3rd f	larly as to times, places, persons, sums, securities, or written instruments, £c.J

To A.B.,

The abovenamed plaintiff.

4. Default Summons. . No. 18, 1905, s. 7.

In the Court of potty sessions for [ Schedule 2 to rules.

thc district of Between , plaintiff, and , defendant. j Gazette, 25 May, 1910.

No. of plaint, , of 10 .

T a k e n o t ic e that unless within ten days after personal service of this summons on

you, or, where such service has not been personal, within fourteen days after leave to proceed as if personal service had been effected has been given, you file with the Eegistrar of this Court at , a notice in duplicate of any grounds of defence you may have to this action, dated and signed by yourself or your attorney, together with an affidavit verifying it, or stating such facts as the Court in the circum­ stances deems sufficient in that behalf, you will not afterwards be allowed to make any defence to the claim which the plaintiff makes on you, as per margin, the particulars of which are hereunto annexed; but the plaintiff may proceed to judgment and execution without giving any further notice.

If you file such notice with the Eegistrar within the time specified, the action shall go to trial at the next sittings of this Court to be held not less than four clear days after the day on which you file such notice.

Dated this day of , 19 .

Eegistrar of the Court.

B.

C laim ................................................ Fees for plaint and service . . . . Total amount of debt and costs

206   Act No. 33, 1912,

Small Debts Recovery.

No. 18, 1905, s. 9, 5. Notice of grounds of defence to an action in which a default summons has heert

and Schedule 3 to issued*

rules, Gazette, ......... , ^

25 May, 1910. (To be filed in duplicate with an affidavit of verification.! '

In the Court of petty sessions for 1

the district of |

No. of plaint, , of 19 .

Between , plaintiff, and , defendant.

. T ake notice that I intend to defend this action, and to rely upon the following grounds

of defence, namely:— [Here enumerate grounds of defence.']

Dated this day of , 10 .

Defendant—

Address— . '

(An address at which proceedings or notices may be left or sent by post, must be given.)

No. 13, 1899, s. 35.	6. Precept in the nature of a fieri facias.
ami Second

Schedule. EXECUTION AGAINST GOODS.

Court of petty sessions for the (

district of j

To , of , bailiffs of the Court of petty sessions for the

district of , and to the deputy bailiffs duly authorised and appointed to

execute the processes of this Court, and to each and every of them.

In pursuance and by virtue of a decision of the Court of petty sessions for the

district of , made on the day of , 19 , you are hereby required

to levy of the goods and chattels of , to satisfy for the amount

of pounds shillings and pence, being the amount of judgment

and costs which in the said Court he was adjudged to pay to the said , and

after levy duly made thereof, forthwith to pay the same into this office. And what you shall do herein certify and return to this Court at the expiration of one month from the date hereof, or within three days after this warrant shall be executed, if that shall

sooner happen. , ,

Dated this day of , 19 .

By the Court,

A.B., Eegistrar.

£ s. d.

Judgment............... ;

Costs......................... ^ N

Execution............ ..	‘ 'i ” V
Alias........................ .	" '

£

N.B.—The bailiff shall certify to the Court under his hand (and on the back of the precept where it remains in his possession) the date of execution and what in particular he shall have done and if unexecuted why it is so.

Act No. 33, 1912. 207

Small Debts Recovery.

7. Certificate of unsatisfied execution on a judgment or order. No, 18, 1905.

In the Court of petty sessions for the Schedule Two.

district of

Name, addition, Name, addition , c

Title of action and and residence i and addrcs.s of oS A m ount

Form or Al .1^ A bstract of

of party in j jiarty against l l s i !•£

date of na tu re of of judgm en t Rem arks.

wiiose favour wliom judgm ent o S ■s%

com m ence­ action. re tu rn . or order

judgm ent given 1 given or order | o

m ent. unpaid.

or order made. made. i r

1 I I O

I certify that this certificate correctly and fully sets forth the particulars of the judgment (or order) and of the return unsatisfied of e.xecution issued on such judgment (or order) therein described of tlie Court of petty sessions for the district of

sitting under the Small Debts Eecovery Act, 1912.

Dated this day of 19 . . A.B., .

, , ■ i Eegistrar.

8. Subpeena for ^vitness.

No. 13, 1899.

Second Schedule.

New South Wales. ' " .

Court of petty sessions lor the To A.D. of

district of C.D. of

) E.F. of

You are hereby severally commanded, setting all excuses aside, to appear in this Court at on , the day of next, at of the clock in the forenoon precisely, to testify the truth in a cause therein depending between A.B., the said A.B. [or C.D., as the case may bo] [adding if necessary and to bring with you a certain agreement or note, &c., sufficiently describing it as to date and otherwise^, and herein fail not at your peril.

By the Court,

Eegistrar or Clerk of the Court.

9. Attachment for non-appearance to a subpoena.

A.B. plaintiff	I
C.D. defendant	J

Court of petty sessions for the |

district of j

To bailiffs and their deputies to each and every of them. No. 13, 1899.

At a court of petty sessions for the district of held on the day Second Schedule,

of 19 it appearing to this court that has been duly served with a copy of a subpoena to attend this court in the above case and though duly called came not. You and each of you are hereby commanded to attach the said wherever you may iind him for a disobedience to the said subpoena and him safely and securely keep so that you may have him before a justice of the peace of the said court on

, the day of , to hear and abide such order as shah then

be made touching the contempt of the said , in disobedience of such subpoena.

208   Act No. 33, 1912.

Small Debts Recovery.

No. 13, 1899.	10.	Order for examination of judgment debtor.
Se3ond Schedule.

In the Court of petty sessions for the |

district of f

Between , judgment creditor, and , judgment debtor.

U pon the application of the abovenamed judgment creditor it is ordered that the

abovenamed judgment debtor attend this Court on the day of , 19 , at the th hour of the clock in the noon, and be examined as to whether any and what debts are owing to him, and that the said judgment debtor produce all necessary books and documents at the time of the examination.

Dated this day of , 19 .

By the Court [or by the registrar, or by , J.P., when the Court

was not sitting.]

Registrar.

To , the abovenamed judgment debtor.

No. 13, 1899. 11. Affidavit to ground garnishee order.

Second Schedule.

No.

In the Court of petty sessions for the )

district of )’

Between , judgment creditor, and , judgment debtor.

I, of , the abovenamed judgment creditor [or attorney or agent for the

abovenamed judgment creditor], make oath and say—

(1) That I [or the abovenamed judgment creditor] on the day of

last past recovered judgment in the Court of petty sessions at against

the abovenamed judgment debtor for the sum of £ and costs.

(2) That the said judgment is still wholly unsatisfied [or is still unsatisfied to the extent of the sum of £ 1.

(3) That E.F., of [state description^ is indebted to the said judgment debtor in

. the sum of £ .

(4) That the said E.F. resides within the jurisdiction of this Court. ^

Sworn at this day of , 19 , before me •

This afiidavit is filed on behalf of the abovenamed judgment creditor.

No. 13. 1899. 12. Garnishee order attaching debt.

No. ■ ■

Second Schedule.

In the Court of petty sessions for the |

district of /

Between , judgment creditor, and , judgment debtor, and garnishee.

U pon h ea rin g an d read in g th e affidavit of filed th e day of ,

19 , and upon the abovenamed judgment debtor be attached to answer a judgment recovered against the said judgment debtor by the abovenamed judgment creditor in the Court of potty sessions in the district of on the day of , 19 , for the sum

of £ s. d„ on which judgment the sum of £ s. d. remains due and

unpaid. . .

(And

Act No. 33, 1912. 209

Small Debts Recovery.

(And it is further ordered that the said garnishee attend this Court on the

day of , 19 , at of the clock in the noon, to show cause why he should not pay into Court the debt duo from him to the said judgment debtor or soi much thereof as mnj' be sufficient to satisfy the said judgment.)

' Dated this day of , 19 .

By the Court [or by the registrar, or by , J.P., when the Court

■ was not sitting].

' ■ Eegistrar.

To the ahovenamed garnishee.	.
(To the abovenamed judgment debtor.)

N o t e . — If the garnishee pay the amount of debt or so much thereof as will satisfy the judgment debt into Court five dear days before the hearing of this summons he will incur no costs. If the

garnishee does not appear and dispute the debt the Court may order execution to issue against him.

13. Judgment against garnishee.

No. 13, 1890.

Second Schedule.

In the Court of petty sessions for the )

district of J

Between A.B., judgment creditor, and C.D., judgment debtor, and E.F., garnishee. Acknowledgment of

I t is ordered that the said A.B., the abovenamed judgment creditor, do recover against

the said E.If., the abovenamed garnishee, the sum of [insert the amount of the

judgment dcH, or 'so much thereof as the debts amount to when the same are less than	.
the judgment and i; for costs, amounting altogether to the sum of £ ; and it is further ordered that the garnishee do pay the same to the Eegistrar of the Court on the day of 19 . [or by instalments of for

every days, the first instalment to be paid on the day of 19 ,

In case default be made in payment of any one of such instalments and execu­ tion issue, it shall be for the whole of the above amount then remaining due.

Dated this day of , 19 .

14. Execution against garnishee. No. 13, 1899.

No. Folio in ledger. Second Schedule.

In the Court of petty sessions for the [ ■ ' ^

district of J : i ; ;

Between A.B., judgment creditor, and C.D., judgment debtor, and F.F., garnishee.

on the day of 19 , the judgment creditor obtained a judg­

ment in this Court against the garnishee for the sum of £ , being [portion of\ the amount due by him tc the judgment debtor, and it was thereupon ordered that the garnisliee should pay the sum to the Eegistrar on the day of 19 [or by instalments of for every days]. And whereas default has been made in payment according to the said order: These are therefore to require and order you forthwith to make and levy by distress and sale of the goods and chattels of the said F.F., whcrcsovcr they may be found, within the district of this Court (except the wearing apparel and bedding of him and his family and the tools and implements of his trade, if any, to the value of ten pounds), the sum stated at the foot of this warrant, being tho amount due to the said A.B. under this order, including the costs of this execution, and also to seize and take any money or bank-notes, cheques, bills of exchange, promissory notes, bonds, specialities, or securities; for pioney of the said E.F.

0 ifi'hicj;

210   Act No. 33, 1912.

Small Debts Recovery.

which may there he found, or such part or so much thereof as may be sufficient to satisfy this execution and the cost of making and executing the same, and to pay what you shall have so levied to the Registrar of this Court, and to make return of what you have done under this warrant immediately upon the execution thereof.

Given under the seal of this Court this	day of	,1 9 .	’ i
By the Court.

Registrar.

To the hailiff of the said Court and others the assistant bailifFs thereof.

Amount of which judgment was attained.

£ s. d.

Amount of judgment.. ........................... '

Costs	.	.	. .	. .	. .	. .	. .
Mileage	. .	. .	. .	. .	. .	. ,

Paid into Court ......................................

Total amount to be levied

Notice.—The goods and chattels are not to he sold until after the end of five

days next followmg the day on which they were seized, unless they be of a perishable

nature, or at the request of the said E.F.

Application was made to the Registrar for the warrant at minutes past

the hour of in the noon of the day of , 19 .

. • 15. Order for trial where garnishee disputes dett. .

No, 13, 1899.

Second Schedule, No. ' .

In the Court of petty sessions in the

district of J

Between A.B., judgment creditor, and C.D., judgment debtor, and E.F., garnishee.

Whereas the judgment creditor at a Court holden at on the

day of , 19 , obtained a judgment against C.D., of , for the sum of

£ and costs, and which judgment now remains unsatisfied: And whereas the judgment creditor having filed an affidavit stating that the said E.F. was indebted to the said C.D., a summons was issued calling upon the garnishee to show cause why he should not pay into Court the amount so due or so much thereof as might he sufficient to satisfy the judgment debt, and tho said garnishee appeared upon the said summons and disputed his liability: It is ordered that the hearing of the said summons be adjourned until tho

day of , 19 , at the hour of in the noon, and that upon

such adjournment the liability of the garnishee to ])ay to the judgment debtor tho sum of £ , according to the particulars hereunto annexed, be tried and determined [or insert any special direction as to question to be tried].

Dated this day of 19 .

Eegistrar.

£ s. d.

',	Debt or claim	. .	...........................
Cost of summons	. .	. . . . . .

Attorney’s costs . . ..,,

THIRD

Act No. 34, 1912. 211

Small Debts Decovery.

THIED SCHEDULE.

Attorney’s costs.

Section 38 (2).

£ s. d. No. 13, 1899.

For drawing and copying plant, with the particulars . . . . 0 2 6

For summons, with the jiarticulars	. .	. .	. .	. .	0 1 0
For defence or set-off, with the particulars	. .	. .	. .	0 2 6

For an Advocate’s foe in a case not exceeding £10, not more than 1 1 0

For an Advocate’s fee in a case exceeding £10 > . . . . 3 3 0