A BILL

Auckland Chronicle and New Zealand Colonist, Volume 2, Issue 42, 23 May 1844, Page 3

A BILL

TO ESTABLISH COURTS OF REOUSET, For the more easy and speedy Recovery of small Deblsi Preamble. Wiieheas, by an Ordinance made by the Gov* ernor of New Zealand, with the advice and consent of the Legislative Council. Session 11 No. 2, and intituled Art Ordinance for establish* ing County Courts, of Civil and Criminal Jurisdiction, and for repealing an Ordinance for instituting Courts of Request, Session 1 No. 6, and forrepealing part of an Ordinance for establishing Couits of Quarter Sessions, Session 1 No.. 4,”—it was enacted that there should be within the Colony of New Zealand County Courts of Record, possessing Civil and Criminal Jurisdiction, in manner in the said Ordinance provided. And Whereas, by the appointment of an additional judge of the Supreme Court, it hath become practicable that all cririies and offences committed within the Colony may be tried before a Judge of the said Court,— -And Whereas, it is desirable that provision should ba made for the Recovery of Small Debts in a more easy and speedy manner thau by the said Ordinance was provided. Be it therefore enaoted by His Excellency Governor of New Zealand, with the advice and consent of the Legislative Council thereof as follows; County Court Ordinance Repealed. 1. The said recited Ordinance is hereby Re* pealed, except so far as jany prior Ordinance or part of any Ordinance was repealed thereby. I.—CREATION OF COURTSCourts to be < rented. 2. There shall be within I ,the Colony of New Zea* land Courts for the Recovery of small debt which shall be Sailed Courts of Request** And Districts Dejinod. 3. His Excellency the Governor shall with the advice of the Executive Council, by Proclamation, from time to time appoint fit places for the holding of such Coarts, and define the District within which the Jurisdiction of each of such Courts shall be < exercised, and the limits of such Districts from time to time shall alter as occasion may require. lI.—CONSTITUTION OF COURTS To be holden before a Commissioner. 4. Every snch Coart shall be holden by and before a fit Person being a Barrister or Solicitor of the Supreme Court, who shall be and be called the Commissioner of the Court of Requests , Provided

that no Commissioner shall bp in any way (Oncerned in the conduct of any suit in any Court, either as Barrister, Solicitor, or Agent. Commissioner how to be appointed. 6. Every such Commissioner shall be appointed by Her Majesty, Her Heirs'and Successors, and •hall hold his Office during Her Majesty’s pleasure, Provided that it shall be lawful for His Excellency the Governor to app'bintany such Commissioner provisionally, until'Her Msjesty's pleasure shall be known. To take an Oath. 6, Every Commissioner shall before entering os his Office take an Oath before a Judge of the Supreme Court, or some person specially ap pointed by such Judge according to the form in Schedule A. hereunto annexed, faithfully to execute the duties of hie Office, Officers of Court. ?• For every Court there shall be a Clerk end a Bailiff, both of whom shall be appointed by Bis Excellency the Governor, and shall be removetbhi by him on reasonable cause. Seal. & Every such Court shall have and use a Seal wherewith nil' Summonses, Warrants, and other flmm issuing out of the Court shall be Sealed, wad aff the Impression whereof Judicial notice Shall he lakes in all Courts without any Evidence of welb Seal having been impressed, or aoy other Itwtenee relating thereto;-" IUi—JURISUtCTION OF COURTS, Jurisdiction of Court. ( Every sneb Court shal 1 have exclusive Cog • atigtfftceof all Suits where the Debt or Sum alleged itd] due and owing, shall not exceed (£2O) Sterling, and where the Defendant or any one Jfcftfendaiit where there shall be more than one, shal I wesille within the Jurisdiction of the Court, Provid«il tlt«t such Court shall not have Cognizance of any Suctfor the recovery of any Rent, or where the Debt ooiight to be recovered sbalPbe the balance of an ttffimnit or demand originally exceeding ( Twenty Pounds), nor cffany-SBit wherein the Title to any Property shall be in question, or where Eights in future would be bound by the Judgment tff the Court. Provided always that any Suit which WmutUWttjerwise fall within the exclusive Cognixance atffatny Court of Requests, may by the agreement of oilffhe parties thereto b#brought and determined in tfife&lfpreme Coort. Cause of action not to be divided. Wb, It shall not be lawful for any Plaintiff to Eivtide any Cause of action into two or more Suits "Sat dbe purpose of bringing the same within the Jhawdiction of the Court: bat any Plaintiff having Cause of Action above the value of (Twenty VnmAa), may abandon the excess t and the Judgfusrttof the Court, if given in favour of such Plain. Whill operate as a"fullidiscbarge of the Defendant Immadl Demand? in respect of such cause of Action. Judgment to be final. 3SL The Decision of the Commissioner shall be **•3 on all Questions, botb'of faot and of law, nor teibaii jany Case be removed on behalf of either into Bny Superior Court by Certiorari, or fdfrynplsfi in any stage of the proceedings. Nevertheless, it shall be lawful for the Commissioner application by or on behalf of any of the Parities *» the Suit, made immediately on the delivery jifibe Judgment, to reserve for the opinion of the Itapsecne ICourt any point of law upon which such Judgment may directly depend: in which Case shall not issue until the opinion of the ttqpreme Court shall have been pronounced. No*privilege allowed, S&. No privilege shall be allowed to any person ieoaempt him from the Jurisdiction of any such Cmrrt by reason of his being, a Solicitor of the Sepreme Court. IV.—PRACTICE OF THE COURT. Court to tit twice a Month. U, In every District a Court shall Sit on the o * and the 15th days) of every month) but if any •och Court day shall be a Sunday or Good Eiidey, the Court shall sit on the day following. Office to be open daily. 14* The Office of the Clerk of the Court shall t)« ®peu every day' (not being Sunday, Good Friday, or Christmas day,) from [lo] o’clock in the nwnaing to [4] o’Clock in the afternoon of the same Where Plaintiff may state his demand. 18. Any person having, any demand whereof the Court shall have -Cogiiizance,. may apply to the Clerk of the Court, and state to him the nature and amount of such demand. .The Plaintiff Shall also at the same time deliver to the Clerk explicit particulars in writing of the Plaintiff’s demand, which shall set forth the same in a simple and compenduous manoer, specifying the items, &atea and amounts. Clerk to issue a Summons. 16. Hie Clerk shall forthwith issue a Summons in the Form No. 2., in the Schedule hereto annexed, requiring the appearance of the Defendant on soch Court-day as shall fall next after the expiration of Ten clear davs after the day of tile service thereof, unless satisfaction shall have been previously made to the Plaintiff. The Summons and the particulars of the Plaintiff’s demand shall bte forthwith served personally on the Defendant,-and left with him by the Bailiff or his Officer. , A. i The Hedring. 17. At the time, gnd place mentioned in the Summons, both parties being present, the Corns xnis&toner shall « proceed to ascertain the point in issue between them, and shall enter a written Memorandum thereof in a Book to be kept by him for that, purpose. He shall then hear the evidence on both sides. The parties to the Suit may be Examined on Oath. 18. On the hearing or trial of any suit, the parties thereto shall be Competent to givfe evidence; such parties and all poisons whosoever competent in Law o give evidence may he examined upon Oath touching the matters in question Before aov-jigrty or witness shall be so examined, the Cp.iMnai.-wwner shall administer, or cause to be ad-

ministered an Oath, or soiem affirmation (as the case may require) to such party or 'witness accordingly. All Examinations to be Conducted by Commissioner. 19. Every examination and cross-examination of any party or witness shall be conducted by the Commissioner alone, Nor shall any person be allowed to appear and act as an advocate for any party to any suit’ Set off P leaded. 20. Every Defendant shall be allowed to se* off any debts claimed to be due to him from the Plaintiff, or to claim and have the benefit of any Statute of Limitations. Provided that no such defence shall be admitted unless notice thereof in writing, shall have been left at the Office of the Clerk of the Cotut five clear days at least before the day fixed by the Summons for the appearance before the Commissioner, Causes to be Determined in a Summary way. 21. The Commissioner shall theft proceed in a summary way to try the cause and give judgment therein. Provided that, in the hearing and determining of all causes, the Commissioner shall proceed according to the Laws and Ordinances in <orce for the time being within the Colony, except so far as the same may be altered or varied by this Ordinance. Hearing may be postponed. 22. In case it .shall appear to the Commissioner that, by reason of the want of material evidenoe or otherwise, he cannot then safely and justly give judgment in the cause, it shall be lawful for such Commissioner to adjourn or postpone the hearing thereof until the next Court day, on which day the cause shall be finally heard and determined, Commissioner t» difficult cases may take time for Judgment. 25. Provided always that if after the hearing of nny cause, the Commissioner shall be unable by reason of the difficulty or perplexity thereof, at once to give judgment therein, it shall be lawful for such Commissioner to defer the delivery of such judgment for any time not exceeding two clear days after the hearing of the cause. If Defendant fail to appear Cause to be heard in his Absence. . 24. If on the day named in the Summons, the Defendant shall not appear either in person or by agent, the Commissioned shall after proof made upon Oath of the due service of the Snhimons pros ceed to hear the cause on the part of the Plaintiff only, and to give judgment thereon, provided that Execution shall not issue on any such judgment until after the Court day next following the day of the delivery thereof. Provided also that in every suoh case it shall be lawful for the Defendant to appear either in person or by agent, op such next Court day, and to shew that having a good defence on the merits he was prevented by inevitable accident from bringing forward the same on the day named in the Summons, whereupon the Commissioner if he shall deem the cause shewn by the Defendant to be sufficient, shall set aside the judgment already given, and grant a re-hearing of the oause upon such terms as to the Commissioner shall seem meet. Warrant of Execution to be issued by Clerk agains t Goods. 25. The Clerk of the Court shall at the request of any party in whose favour judgment shall have been given issue a Warrant of Excution in the Form No. 4, in the Schedule hereunto annexed to the Bailiff of the Court, who by virtue thereof shall be empowered to Levy by Distress and Sale of the Goods and Chattels of the party against whom such judgment shall have been given (such Goods and Chattels being within the jurisdiction of the Court,) such sum of money as shall be mentioned in the said Warrant. If Goods Insufficient, then against the Body. 26. If it shall appear upon the return of the Warrant that such Goods and Chattels cannot be ifound, or do not suffice for payment of the sum to be Levied, the Clerk of the Court shall upon such ireqnest a 6 aforesaid issue a Warrant of Execution in the Form No. 5, in the Schedule hereto annexed to such Bailiff as aforesaid, who by virtue thereof shall be empowered to take in Execution the body of the person named therein. Persons taken in Execution to be Imprisoned in Com . mon Gaol for a limited period. 27. Every person who shall be taken in Execu’ tion under aDy such Warrant shall be committed to the Common Gaol of the District within whioh the Court shall be holden, and shall remain in custody for suctitime from the day of his Commitment, as shall be mentioned in such Warrant, or until he shall perform and satisfy the judgment or Order of the Court, or be discharged by due course of Law. Seal* of Terms of Imprisonment. 28. The term of Imprisonment- shall be as follows, that is to say: Where the sum for which the party shall have been taken in Execution sha II not exceed Five Pounds, (One Calendar Month) Where such sum shall exceed Five Pounds but shall not exceed Ten Pounds, (Two Calendar Months.) Where such sums shall exceed Ten Pounds but shall not exceed Fifteen Pounds, ( Thrte Calendar Months ) Where such sums shall exceed Fifteen Pounds, (Four Calendar Months,) and no more. Imprisonment to release from all Liabilities. 29. Every person who shall have undergone such term of Imprisonment as aforesaid, shall be thenceforward released from all Liabilities whatsoever in respect of the Debt and Costs for which he shall have been so taken in Exeou» tion. Debtor to be maintained in Gaol by Creditor. 30. Every Creditor at whose Suitany person shall be so imprisoned as aforesaid, shall pay to the the Gaoler or Keeper of the Prison wherein such person shall be confined, the weekly sum of (Three Shillings ,) for the maintenance of such prisoner and on proof being made to the Commissioner on Oath of the said Gaoler or Keeper, on any Court Iday, that two such weekly payments are due and in arrear.tbe Commissioner shall order such prisoner to be forthwith discharged from custody at the suit

of the Creditor so failing to pay the same. Every person so discharged shall be released from all Liabilities in respect of the debt and cjsts for which he shall have been taken in Execution as fully as as if he had undergone tbe-wbole ~term of his imprisonment. In Executing Process the Bailiff to have same power as a Sheriff. ' 31. In executing any Process of the Court, the Bailiff shall have suph powers and be subject to such liabilities as any Sheriff hath or is subject to in like cases, in executing the Process of the Supreme Court. Minors may sue for Wages. 32. It shall he-lawful for any person under the age of Twenty-one years to prosecute a Suit tor Wages in any such Court in the same manner as if be were of full age. Process in case of Joint Liability. 33. Where two or more persons are jointly, answerable, it shall be sufficient if one of such per-; sons be served with the process of the Court, and judgment may be obtained and Execution issued agatnst soch person alone; reserving always any: right which be may have to demand contribution from any other person jointly liable. Summonses to Witnesses. 34. Either of the parties to any Suit may obtain at the Office of the Clerk of the Court Summonses to Witnesses, with or without a clause requiring the production of books, papers, and writings, io their possession or controul. In any snch Sumraons any number of names may be inserted. Penalty for Nan-attendance. 35. Every person resident within the District of any such Court who after lawful servioe of such Summons and payment or tender of his Expenses acoording to the scale in the Schedule hereto ans nexed, shall refuse or neglect, without sufficient cause to appear, or produce any books, papers, or writings, as by such Summons required, or appearing shall refuse to be Sworn or make Solemn Affirmation (as the case may require) and give Evidence shall forfeit and pay such Fine, (not exceeding Five Pounds) as the Commissioner shall think fit to impoxe. The Bailiff shall thereupon prftceed to recover such Fine, in the same manner, and subject to the same provisions and limitations, by Distress and Sale, and if need be by Imprisonment, as if the amount had become payable by virtue of a Judgment of any such Court. Expenses of Witnesses. 36* Every person who shall be Summoned and shall appear as a Witness in any Action in any Court of Requests shall be entitled to an allowance of compensation fov expenoes and loss of time ac* i cording to the Scale contained in the Schedule B Provided that such ajjowanoe or compensation to any Witness shall not in any Case ba deemed to be Costs in the Cause, unless the Commissioner shall have certified in writing, immediately after Judgment shall have been pronounced, that the Evidence of such Wituess was necessary to prove the Case of the Party by whom such Witness was called. The expense of employing a Solicitor not to be costs in the Cause. 37. If in any Case a Soliciior shall be employed on behalf either of Plaintiff or Defendant, the expense of employing such Solicitor shall not in any case be considered as Costs in the Cause. Provided that if any Solicitor shall be so employed he shall be entitled to recover for his Services from the Person on whose behalf he shall have acted the Sura following and no more, that is to say -If he shall have acted on behalf of the Plaintiff, he shall be entitled to a sum equal to (One Tenth ) part of the sum for whioh Judgment shall be obtained, exclusive of Costs, if he shall have acted on behalf of the Defendant, he shall be entitled to (One Tenth) part of the difference between the sum sought to be re* covered and the sum (if any) for which Judgment shall be given ;—Or, in case of Judgment for the Defendant, then to (One Tenth) part of the sum sought to be recovered. ' Agent to have Written Authority.

38. No Person shall act as Agent for any Party, Plaintiff or Defendant, until he shall have deliver* ed to the Clerk of the Court a written Warrant or anthority so to act, signed by the Party on whose behalf he shall appear. Fees to Clerk'and Bailiff. 3q. The Clprk and the Bailiff of the Court shall be entitled respectively to recover the Fees specified in Schedule B. hereto annexed, and no more. A Table of such Fees shall be bung up in such conspicuous place in the Office of every 6Uch Clerk. To be paid in Advance. 40. All Fees-due to any Officer shall he Paid in Advance, and shall be Paid in the first instance to the Clerk of the Court; but such part of such Fees as shall be payable to the Bailiff of the Court, shall be paid over to him by the Clerk after the performance of the Service in respect whereof they shall have beoome Due, and not before, Clerks fees to be paid into the Treasury. 41. All Fees so received by any such Clerk (except such as shalibave been received on account of the Bailiff), and all Fines received by him shal] be accounted for and paid over Monthly totbe Colonial Treasurer, or Treasurer ot the County or District as the case may be, to the nse of Her Majesty Her Heirs and .Successors for the Public Uses of the Colony aftd the support of the Government thereof. Clerk to make notes of all Proceedings. 42. The Clerk of the Court shall cause Notes of all Process issuing out of the Court, and of ail Proceedings therein to be fairly Entered from time to time in a Book which shall be Kept at his Office, and shall Sign his Name at the bottom of every page of such book, and at the Commencement of the business on every Conft Day, he shall lay the sam e before the Commissioner in open Court. Entries in Note-Book to be Evidence. 43. Any Entry «o Signed or p Copy thereof purporting to be Signed and Certified as a true Copy by the Clerk of the Court for the time being, and Sealed with the Seal of the Court shall be admitted in ail Courts as Evidence of the proceedings meßtioned in such Entry,oiCopy there j. (

Contempt of Court to be Punished. 44. If any Person shall Wilfully Insult the Commissoner of any Court of Requests whilst Sitting in Court, or shall in any other manner be guilty of any Wilful Contempt in the face of the Court, it shall be lawful for such Commissioner by Warrant under his hand to Commit the Persou so offending to the Common Gaol ot the district, within which such Court shall be holden for any term not exceeding (One Calendar Month.) V-—MISCELLANEOUS PROVISIONS. Arrest of Debtors Escaping from the-Colony, 45. And Whttreas, Debtors cannot be restrained from leaving the Colony except by a Writ of Arrest issued under the Order of a Judge of the Supremo Court. And Whereas , it may often happen that immediate access ' cannot be had to a Judge of the Supreme Court, lor the purpose of obtaining such Older. Be it therefore Enacted, that it shall be lawful for any sqch Commissioner as aforesaid (in the absence *of a Judgs of the Supreme Court),.to issue a Warrant under his hand for the apprehenion of any person so intending to leave the Colony who shall thereupon give seem ity (to the satisfaction of such Commissioner) to abide the result of an Application to be made to a J tidge of the Supreme Court for such-Writ of A rre.si,as aforesaid, or in default thereof shall be kept iq t Custody until the result of such application shall be known. Provided that no such Warrant as aforesaid shall h»= issued except upon such Affidavit as may be re» quired in like cases by the Rules of the Supreme Court for the timq being. Period of Detention not to exceed three Months. 46. No person apprehended as aforesaid shall be detained in Custody by virtue of any such Warrant for any period exceeding (Three Calendai Months.y And it shall be lawful for the Commissioner at any time within such period to require Proof to be made on Affidavit that due diligence has been used te obtain such Writ of Arrest as aforesaid ; and. i& default of Proof, the Commissioner shall discharge the person so detained as aforesaid or Cancel hi# Securities as the case may be. Commencement of Ordinance. 47. This Ordinance shall come into Operation on the First day. ot (October,) One Thousand Eight Hundred and Forty-four. Provided alwey* that when Judgment shall have been given in any Suit in any County Court before the said First day of October, 1844. Execution may be had and alt other proceedings may be taken on such Judgment as folly and effectually as if the said recited Ordi» nance Session II No. 2 had not been Repealed. SCHEDULE B.—SCALE OF FEES, &c. 1. —Clerks Fees. 1 '■ Every Summons under.4os. Is.--from 40s. to £sf Is 6 d —from £5. to £lO. 2s—above £lo. 3s Every Hearing under 40s. Is—from 40s to £)S O 2s —from £5. to 10. 5 3«—-above £lO. 6s Entering Notice of Special Defence under 40*. 6d —from 40s to £5. Is—from £5. to £lO. Is fidabove £lO 3s Entering any Judgment or Order under 40*. 6J from 40s to £5. Is—from £5. to £lO. Is 6d—above £lO. 3* Every Warrant of Execution under 40. Is—from 40s to £5. 2s—ff° m £5. to £lO. 3s—above £lO. 69 Certifying Costs ot Witnesses under 40s. 6d—from sos to £O. Is—from £5. to £TO. 1* fidabove £lO. 3 a Bailiffs’ Fees. Serving Summons or Subpcana if within one mile of the Office under 40s. 6d.,from 40s to £5„ Is..from £5. to £lO. Is 6d..above £lO. 2s For every mile extra (one way) 6 d For Execution of any Warrant against tho Good# or Body, Is in the pound upon the sum levied or receired, or for which the Body is takep in Execu» tion. If beyond one -mile from the Office, per mile # (one way) 6d For conveying any person to Prison, (including all expences) for every, mile, Is 1 Allowance to Witnesses. For every Witness residing within on? mile of the Office, 2s „ For every extra mile (one way) under 40s. 6dv» from 40s to £b. 6d.» from £5. to £lO. Is,.above £lO. Is (Here follows copies of forms which we think unnecessary to publish, as they would not be interesting to our readers.—Ed. Chron.