Imprisonment for Debt.

Bruce Herald, Volume VII, Issue 650, 17 November 1874, Page 6

Imprisonment for Debt.

The ruleß for Resident Magistrates' Courts under the '• Imprisonment for De .t Aboli ti')ti Act, 1874," were published in the ' New Zealand Gazette' of the 30oh ulfc. In order mat creditors and debtors alike may know how the law affects them, we publish the rules : — FIRST SCHEDULE. RULES FOR RESIDENT MAGISTRATE' COURTS, UNDKR " THE 'MPRISOiSMtiM FOR DBBT ABOLITION ACT 1874." Interpretation. In ih& following Rules, the wqMs c< the Act" shaU mean ''The Imprisonment for Debt Ab<>litiou Apt J874 ;" and the words '•clear days" shall mean that in all cases in which any particular number of dayg is p escribed for the doing any ac% or for any other purpose, the same shall be reckoned exclusive both of the first day and of the last day ; and in the interpretation of ther-e Rules, unless there be something in the context inconsistent therewith, the word " person" shall include a body politic or corporate, and every "word importing the singular number only shall include the plural number, and words importing the plural number only shall include the singular number, and .words jrapprting the RiweuJwe gender only nb»il

include females, unless the contrary a* to number or gender is expressly provided. "Magistrate's Court" shall include any Resident Magistrate's Court, Cou?t of Petty Sessions, or any Resident Magistrate or Justices acting under "The Resident Magistrates' Act, 1867," or any Act amending the same. Court" shall .mean any Court constituted under " The District Courts Act, 1858," or the Acts amending the same. Judgment Summons. j 1. No order of. commitment under the Act shall be made unless a summons to appear and be examined on oath (hereinafter called a "judgment stimmons") shall have been personally served upon the judgment debtor. 2. A judgment Bummona shall only be issued 'by a Magistrate's Court whsn the debtor resides or carries on business within its district, unless leave of such Court haa been first obtained.

3 An application by a judgment creditor fT t"ie issue of "a judgment summons under the Act shall be in writing. Bigned by th« applicatit or his agent, according to the form (I) in this Schedule. 4. Where a judgment creditor desires to apply for a judgment summons to a Magist ace's Court, other than the Magistrate's Court in which the order or judgment was obtained, he shall obtain from the clerk of the Magistral r's Court in which the ordur or judgment was obtained a certified c py of the order or ju Igment in the miis» f according to the form (2) in this Schedule, and file the same wi h ln» application, 5 Where a party desires to enforce by commitment in any Magistrate's Court a judgement decree or order of a District Court or of the Supreme Court, he sha-'l obtain from such District or Supreme Court, a* "he case may be, a n office copy of the judgment decree or order he desires so to enforce, or a copy of such judgment decree or order, certified by the Registrar or Clerk of the Court, and shall file such copy, together with an affidavit in the form (3) in this schedule, of the sum then due thereon, with the Clerk of the Magistrate's Court to which the application for the judgment summons ti made.

6 Kvery judgment summons on an order or judgment of a Magistrate's Court Bhal be according to the form (4) in this chedule, and be issued not less than ten clear days, and bft served not less than five clear days, before the day on which the judgment debtor is required to appear, except in the case provided for by rule 8 of thesa Rules. 7. Tlie Clerk of the Magistrate's Court to which the application for a judgment sum mona is made shall, upon delivery to him of the certfioata of the Clerk of the District Court or office copy of the judgment, decree, or order of the -erne Court, as the case may be, file the same, and issue thereon a judgment summons in the form (5) in this j-chedule.

8 Where the person applying for the judgment summons shall state to the Clerk <.f tlie Magistrate's Court that the judgment debtor is about to remove from his dwelling <>r place of business, or is keeping out of the way to avoid service, then the judgment fiimmons may be issued and served at any time before the hearing : Provided that the Magistrate's" Court shall not act upnn summons isaued under this rule, unless at the hearing such Cou t is satisfied, by evidence on oath, that at the time of the application u>r the j««d»meut summons such party was ab -lib to re nove from his dwelling <>r place of business or was keeping out of the w*y to ay )id service, in either of which ca^es service upon the pariy at any time bef- re the timo appointed for the appearance of such party shall be sufficient 9 Where the debtor resides or carries on business within the district of the Mai;istra'e's Court to which the application is madt\ a judgment summons may is-me without leave of the Court, except in cases provic'el for by the Ust nils.

10 J^o successive judgment Biunmonses shall he issued.

11. The hearing of a judgment enraraons may be adj mrnerl from tune to time 12 Any wi'ness may be summoned to give evidence in the same manner as wit-ne.-s*s are summoned to give evidence upon the h^arint» of a plain . .""■uch summons sliail be according to the form (6) in ihis Schedule

13 U.iou the issue of a judgment sum mons against a p irty up n an order or jui'ir-nent of the Ma^i.itrat <'s Court is«ui'!g hn judgment summons, the Bailiff of huch Court shall return into such > !ourt any war ran*" of execution against ihe goods of such party which may have been issued in the cause.

14 Where a judgment summons is heard in a Magistrate's Court other than the Court in which the order or jndgmnt wa3 obtained, and an order is made by the C >urt in which the judgment summons i 3 heard altering the terms of the older or judgment, all payments under the new order shall be made into, and execution thereupon against the goods sh»H he issued by the Court,- which has so altered the ord-r. Such order ahall bo in the form (7^ in this Schedule.

15. Where a certified copy of a judgement is obtain- d from the Olerk of a Magistrate's or District Court, he shall make on the minute of the judgment a memorandum of having given such certificate ; and no warrant of execution against the g->ods, or judgment summons upmi such judgment 'shall issue from such Court, un'esa it be shown to the satisfaction of the Court or to the Clerk of such Court th*t no order has been made against the execution debtor in any other Court. Order of Commitment. 16 A.n order of Commitment made under the Act on an order or judgment of a Magistrate's Court shall be according to the form (8) in this Schedule, and an order of commitment made under the *ofc on an order or J judgment of a Court other than a Magistrate's Court, shall be in the form (Ba.) in this Schedule ; and every such order shall, on whatever day it may be issued from the Clerk's office, bear date on the day on which the order for commitment was made, an,d shall continue in force for one year from auch date, and no longer. \J, Tyiienan order of commitment for non payment of mon^y i>» issued, the defendant may, at any time before his body is delivered into the custody of the gaoler, pay to. the bailiff the amount indorsed on the order as that on the payment of which be may be dis charged ; and an receiving such amount t^e bailiff shall discharge the defendant, and, shall, within t,*renty-four h.o.urs after receiving suoh amount, pay over the same to the Clerk of the Magistrate's Court of which 'he is an officer.

18. Th°> sum indorsed on the order of commitment as that upon payment of which the prisoner may be discharged may be paid to the Clerk of the Court from which the cotnIMtrowti w4ep waf iwuod, or to th» $

whbbe custody the prisoner is; Whure it is paid to the (Jlerk, he shall sign' and setl a certificate of . such payment; and upon receiving such certificate by pusfc or otherwise, tho gaoler in whosn custody the prisoner shall tnen be shall forthwith discharge such prisoner And where it is paid to the ga ler, he shall, upon payment to him of su^h amount, togeiher with costs sufficient to pay for' transmitting suah atnouno to the C aire under the order of which the prisoner was committed, by post-order, sign a cernficue of such piyuient and dis marge the prisoner, and suei* costs of transmission shall be part of the prescribed costs. 19. A certificate of payment by a prisoner shall be according to the form (9) in this Schedule.

20 Orders of commitment against the same party mtty be issued concurrently into more than one district : Provided that th» oat of one or.^er ouly shall be allowed unless the Court shall otherwise direct.

21. All costa incurred by the plaintiff in endeavoring to enforce an order or judgment, shall be deemed to ha due in pursuance of such "l'der <>!■ judgment, under section 5 <>f 'Th« imprisonment for Debt Abolition »ct. 1874"

22. Where a judgment debtor sha'l, upon 'he return diy of a judgment stuniu >ns satisfy tli? Court th it. no lia3 been adjudictted a bankrupt, and than the debt was provable in the bankruptcy, or th*t, in rupees of the debt, the provisions of pirt XVIII vi -'The Bankruptcy Act. 1807. ' have been complied witn. uo order vt com iiiitinent s^all b m-ide

23. Where a judgment debtor shall, nfier r,he making of »n order <>f commitment *irainsfc him and before its i^sue, tile in tti« Magistrate's Court in woi h the order wa* made, an affidavit a cording t > the form (L- ) in this Schedule, stating that he haa been adjudicated a baukrupt, and th-it the deowas provabl« in the bankruptcy, or that in respect of ihe judgment debi the proviso's of the before- in«n Honed Part of '• ThiBankruptcy Act 1867," have *>een complied with, and at the same time giving notice tv th • judgment creditor of the tiling of the affidavit, no such order shall issue.

25. VVhßro a. judgment dnbc-T ia arrested, | he may, according to iho tenor of cli« ord«-r of commitment, file in the Magistrate's C.uirt within the district of which he id in custody, an affidavit as mentioned in the foregoing rule, and give the notice to the judgment creditor thereof, as therein required, and thereupon \A\e judgment debtor shall be discharged out of custody upon tlv certificate ot the Clerk of such Court. Such certificate shall be according to the form (11) in this Schedule. Costs. 25. The costs which shall be payable by a person imprisoned under the Act shall be thrives specified in thu Second Schedule, and such fees shall be deemed to be, and sh.il 1 be, the prescribed costs referred to in section 13 of the Act.