ABOLITION OF IMPRISONMENT FOR DEBT.

Thames Advertiser, Volume VII, Issue 1872, 8 October 1874, Page 3

ABOLITION OF IMPRISONMENT FOR DEBT.

Yesiebday the Act for the abolition of imprisonment for debt, passed during the last session of che General Assembly, comes into operation. We alluded to the general principle of the Bill in a former article, but it is an enaotment of so much importance to the mercantile community that some further account of its provisions will probably not be without interest to a large portion of our readers. We have not yet received a copy of the Act from Wellington, as we certainly ought to have done, but gather from our Southern contemporaries, who have been more fortunate in having the Bill sent to them, that the following are its chief features The Act commences by setting forth " that from and after the time of its coming into force, no person shall be arrested or imprisoned for making default in payment of a sum of money," with certain exceptions, to which it then proceeds to refer, and which are as follows: —A default in payment of a penalty (except in respect of a contract) still subjects the person responsible to liability to be imprisoned. The same holds good in the case of default in payment of any sum recoverable summarily before a Resident Magistrate or Justice of the Peace under "The Justices of the Peace Act, 1866," or otherwise than under "The Resident Magistrates Act, 1867." Sums recoverable summarily under "The Justices of the Peace Act, 1866," are not ordinary civil debts, but chiefly fines and penalties which are exempted from the operation of a law abolishing imprisonment for nonpayment. The remainder of the exceptions refer to defaults in payment by trustees j defaults by a solicitor in payment of costs when ordered to pay such for misconduct in his professional capacity ; also default in the payment for the benefit of creditors of a portion of salary, which may have been ordered by the Bankruptcy Court to be made. In all the cases the defaulter is liable to imprisonment, but the period of such imprisonment is not to exceed twelve calendar months.

The clauses of the Kesident Magistrate's Act, uuder which judgment summonses for sums under £10 were taken out, are repealed. Under the Act hitherto in force, the creditor on recovering judgment could not imprison the debtor, except by taking out another summons against him, and having him examined as to his means and ability to pay; and if it were proved that he contracted the debt without reasonable means of being able to pay it, or if he were concealing his funds, an order was usually made by the Magistrate for his imprisonment for a month, and the practical result was that, if the debtor had means, he usually paid in preference to "taking it out in gaol." Under the new Act there is no power for a Magistrate to order imprisonment for a period not exceeding three months in like cases ; but the order must be made in open Court, and show upon the face of it the ground upon which it is issued. Under the old Act the creditor could always imprison his debtor for sums over £10; but under the new law it is necessary, whatever be the amount of the debt to take further proceedings after the first judgment has been obtained, in order to enforce imprisonment. When the debtor is brought before the Court under the second summons, he can be examined on the points hereinafter mentioned " 1. As to his estate and effects, and as

to the property and means lie has of paying, satisfying, and discharging such sum

of money. "2, As to the disposal he may hare

made of auy property. • . "3. As to his intention to leave the

colony without paying such money as isstill unsatisfied, or to depart elsewhere within the colony with intent to evade payment. "4 As to the mode ia which the liability, the subject of such judgment or order, was incurred." The Wanganui Chronicle, in concluding an article upon this subject, thu3 sum* marizes the rest of the Bill: The plaintiff, and any witnesses he may bring forward, can also be examined, and, should it appear from the evidence taken, that the debtor contracted the liability fraudulently, or that he had made away with his property with intent to evade the judgment, or that since the time of the judgment having been obtained, he had been in possession of sufficient means to satisfy it either in whole or by instalments, or that he is about to leave the colony without making payment, then the Oourc may order him to pay the debt in lull, with all costs at once, or by instalments, and failing compliance, commit him . to prison for any period not exceeding throe months. The order for committal is made in the usual way, and it is specially provided that the imprisonment is not to operate as an extinguishment ot the debt. The debtor will be released on payment of the debt and costs, but it is competent for tlie Court in special circumstances of any particular case, to direct the discharge from custody of the debtor. No person, after the coming into operation of this Act, can be arrested upon mesne process in any action in the Supreme Court, but it is competent for the plaintiff in any action therein to arrest the defendant before final judgment had been obtained, should he prove by evidence that his cause of action is good, and that he has reasonable grounds for supposing that the defendant is about to leave the colony. _ The defendant in such a case can avoid imprisonment by giving such security as may be required that he will not leave the colony. Persona in prison for debt on the Ist of October, when the Act comes into force,' provided they are so imprisoned under a process not sanctioned by this Act, are to bj released without payment of fees, but the creditors will still have a right to hold them liable in any way sanctioned by the Act."—if. B. Herald.