THE ORDINANCES.

Nelson Examiner and New Zealand Chronicle, Volume III, Issue 136, 12 October 1844, Page 4

THE ORDINANCES.

No. 7.— IMPRISONMENT FOR DEBT ORDINANCE, i [Came into operation June 25, 1844.] . Preamble. — Whereas it is desirable that provision be made for the relief of persons imprisoned for debt, who have become indebted without any fraud or gross or culpable negligence, by releasing the persons of such debtors from imprisonment, so as nevertheless their estates may still remain liable for satisfaction of their debts : be it enacted by the Governor of New Zealand, with the advice and consent of the Legislative Council thereof, as follows :—

1. Debtors who have been Two Months in Gaol may petition Judge of Supreme Court for Discharge. — It shall be lawful for any person who shall have been taken in execution under process of the Supreme Court for any debt or sum of money, and who shall have remained in prison for two calendar months or upwards, to apply by petition to a judge of the Supreme Court for discharge from custody, according to the provisions of this ordinance.

2. Nature x>f the Petition. — The petition shall state the time of the petitioner's commitment to prison, and the names of the persons at whose suit he shall be detained in custody, and the debts or sum of money for which he shall be so detained ; and that he hath caused notice- in writing of his intention to present such petition to be personally served on such detaining creditors as aforesaid, or on their agents. The petition shall also be subscribed by the petitioner, and be forthwith filed with the registrar or deputy registrar (as the case may be) of the Supreme Court for the district within which such prisoner shall be confined. 3. Sittings of the Court. — The Court shall sit for the hearing of applications for relief, and for the despatch of all business arising under the provisions of this ordinance, at the places and times following, that is to say : at Auckland and Wellington in the months of March, June, September, and December in every year, or at such other periods and on such days as the judge or judges of the Supreme Court exercising jurisdiction in the district may appoint ; and at any place where a circuit court shall be holden, on such day during the sitting of such court as the judge of assize shall for that purpose appoint. 4. The Hearing and Discharge. — Every prisoner who shall have filed such petition as aforesaid twenty-eight days at least before any day so appointed for the despatch of business arising under this ordinance, shall be brought up on such day accordingly. And after the hearing of the prisoner's application for relief, it shall be lawful for the court, on being satisfied of the truth of the matters contained in such petition, to adjudge that such prisoner shall be entitled to the benefit of this ordinance immediately, or at such time as the court shall direct, in pursuance of the provisions hereinafter contained, and to cause such prisoner to be discharged accordingly.

5. Prisoner discharged not again liable to be taken in Execution, but Estate to remain liable.— Where any prisoner shall be discharged from custody under the provisions of this ordinance, he shall not be liable at any time thereafter to be taken in execution for any debt or sum of money with respect to which he shall have so become entitled to the benefit of this ordinance : provided that as against the estate and effects of such prisoner, whatsoever and wheresoever, the judgment under which he shall have been so imprisoned as aforesaid shall be of as full force and effect as if the body of such prisoner had never been taken in execution by virtue thereof.

6. Prisoner at the Hearing to make Statement^ in Writing of all Debts due to him. — At such hearing as aforesaid the prisoner shall deliver to the court a full and true statement in writing, subscribed by such prisoner, of all debts then due or growing due to such prisoner, or to any person in trust for him, and the names and places of abode of the several persons from whom such debts shall be due or growing due, and of the witnesses who can prove such debts, so far as such prisoner can set forth the same.

7. Prisoner to execute Power of Attorney in favour of one of the Detaining Creditors. — The prisoner shall likewise, on the application of any detaining creditor, execute a power of attorney in favour of such creditor, or such one of the detaining creditors as the court may name, enabling such creditor to sue in his own name for the debts set forth in such statement as aforesaid, and for all other debts which shall appear at such hearing to be due or growing due to such prisoner. And no prisoner shall be entitled in any case to the benefit of this ordinance until he shall have executed such power of attorney as aforesaid, whenever application shall have been duly made for the same. x 8. Moneys so received to be paid into Court for the benefit of all Detaining Creditors. — All moneys which shall be received by virtue of such power of attorney as last mentioned shall be paid into court immediately after the receipt ' 'thereof, and after deducting the expense of such pojrer of attorney as aforesaid shall be divided among the creditors at whose suit the prisoner shall have been detained at the time of such hearing as aforesaid, in proportion to the judgment debts in respect whereof he shall have been so detained. And in case such moneys shall net have been so paid into court by the creditors who shall* have received the same, it shall be lawful for the judge who shall have presided at tuch hearing; as aforesaid, upon the application of any other of the detaining creditors last mentioned, to make order for the due payment of the same. 9. Opposition to Prisoner's Discharge. — In case any detaining creditor shall intend to oppose such prisoner's discharge, it •hall be lawful for

such creditor to put questions to the prisoner, and to examine such witnesses as to the court shall seem meet, touching such matters as the court shall think proper to inquire into, in order to the due execution of this ordinance. And in case the court shell entertain any doubt respecting any matter alleged against such prisoner at the hearing to prevent his discharge, or in case such prisoner shall not answer upon oath to the satisfaction of the court, it shall be lawful for the court to adjourn the hearing and examination of such prisoner to some future sitting of the court, and so on from time to time as occasion may require.

10. For contracting Debts fraudulently, Bfc, Debtor may be imprisoned Two Years. — In case it shall appear to the said court that such prisoner shall have contracted any of his debts for which he shall be so detained in custody fraudulently or by means of a breach of trust, or by means of false pretences, or without having had any reasonable or probable expectation at the time when contracted of paying the same, or shall have fraudulently or by means of false pretences obtained the forbearance of any such debts by any of his detaining creditors, or shall have put any such creditors to unnecessary expense by any vexatious or frivolous defence or delay to any suit for recover, ing any such debts, or shall be imprisoned for damages recovered in any action for criminal conversation with the wife, or for seducing the daughter or servant of the plaintiff in such action, or for breach of promise of marriage made to the plaintiff in such action, or for damages recovered in any action for a malicious prosecution, or for a libel, or for slander, or in any other action for a malicious injury done to the plaintiff therein, or ia any action of tort or trespass to the person or property of the plaintiff therein ; then it shall be lawful for such court to adjudge that such prisoner shall be discharged and entitled to the benefit of this ordinance so soon as he shall have been in custody at the suit of the person who shall be creditor for such debts, sums of money, or damages as aforesaid, for a period not exceeding two years in the whole, as the court shall direct.

11. For fraudulent Disposition of Property, Bfc, Debtor may be imprisoned for Three Years. — In case it shall appear to the court at any such hearing as aforesaid that the prisoner has fraudulently concealed or misrepresented the state of his affairs, or that, with intent to diminish his means of paying and satisfying any of his detaining creditors, he has fraudulently discharged or concealed any debt due or growing due to him, or to any person in trust for him, or made away with or assigned, transferred, charged, delivered, or made over any of his estate or effects before or after the commencement of his imprisonment, then it shall be lawful for the court to adjudge that such prisoner shall be discharged and entitled as aforesaid, so soon as he shall have been in custody at the suit of some one of his detaining creditors for such period, not exceeding three years in the whole, as the court shall direct.

12. Costs of successful Opposition to be allowed to Creditor. — Whenever any detaining creditor opposing the discharge of any such prisoner shall prove to the satisfaction of the court that such prisoner has done any act for which, upon such adjudication as aforesaid, he may be detained in custody for any peripd not exceeding two or three years as aforesaid, it shall be lawful for the court to allow to such opposing creditor such costs of opposition as to the court shall seem reasonable. The costs so to be allowed shall be added to and deemed to form a part of the judgment debt in respect of which such prisoner shall have been taken or charged in execution at the suit of such opposing creditor.

13. If Prisoner be discharged at the Hearing, Creditor to pay Costs of his Maintenance in Prison. — rWhere any prisoner shall be found at any such hearing or adjourned hearing to be entitled to be immediately discharged under the provisions of this ordinance, the court shall, on the application of the keeper of the prison in which such prisoner shall have been confined, and upon proof that such prisoner has been maintained during his imprisonment or any part thereof at the public expense, order the creditor or creditors at whose suit he shall have been so imprisoned forthwith to pay to such keeper such sum or sums of money, after a rate not exceeding in the whole the rate of four shillings by the week, for the period during which the prisoner shall have been so maintained, in such proportions as the court shall direct. Every order so made shall have the effect of a judgment of the court in favour of such keeper as aforesaid.

14. Ordinance not to extend to Crown Deits, Sfc — This ordinance shall not extend to discharge any prisoner with respect to any debt due to her Majesty or her successors, or to any debt or penalty with which he shall stand charged at the suit of the Crown, or of any person for any offence committed against any act of Parliament or ordinance of this colony relative to any branch of the public revenue, or at the suit of any sheriff or other public officer upon any bail bond entered into for the appearance of any person prosecuted for any such offence, unless his Excellency the Governor shall certify under his hand his consent that such person may apply to take the benefit of this ordinance.