instalment or instalments, which the Court in which the judg ment shall have been obtained shall have ordered;

and if he shall refuse or neglect to pay the same, as shall or refusing to have been so ordered, or as shall be ordered, pursuant to the payorder hereinafter provided,

months.

it shall be lawful for the Court, Resident Magistrate, or for not exJustices of the Peace, if it, he, or they shall think fit, to order that ceeding three such party be committed to any convenient gaol for any period not exceeding three calendar months.

under Bank

And it is hereby expressly declared, that when a debtor is No maintencommitted under this section of this Act, the creditor at whose ance money instance such debtor shall be committed, shall not be required to ruptcy Act. pay the maintenance money required to be paid by the three hundred and eleventh section of "The Bankruptcy Act, 1867."

stalments or

otherwise.

10. It shall be lawful for the Court, Resident Magistrate, or Power to reJustices of the Peace, before which or whom any such summons scind or alter order for pay. shall be heard-if it, he, or they shall think fit-to rescind or ment by inalter any order that shall have been previously made against any defendant so summoned before it, him, or them, for the payment by instalments or otherwise, of any debt or damages recovered, and to make any further or other order, either for the payment of the whole of such debt or damages and costs forthwith, or by any instalments, or in any other manner as the Court, Resident Magistrate, or Justices may think reasonable and just.

11. In every case where the defendant in any suit brought in Power to exany Resident Magistrate's Court shall personally appear at the amine party at hearing trial of the same, the Court, at the hearing of the cause, or at after judg any adjournment thereof,-if judgment shall be given against the ment. defendant for any sum less than ten pounds,-shall have the same power and authority of examining the defendant and the plaintiff and other parties touching the several things hereinbefore mentioned, and of committing the defendant to prison, and of making an order, as the Court or a Resident Magistrate, or any two Justices might have and exercise under the provisions hereinbefore contained, in case the plaintiff had obtained a summons for that purpose after the judgment obtained as hereinbefore mentioned.

12. When any order of commitment shall have been made as Gaoler to keep aforesaid, the Resident Magistrate, or any Justice of the Peace, defendant unmaking or concurring in such order, shall issue a warrant under under this his hand (3) directed to the bailiff of any Resident Magistrate's Act. Court or Petty Sessions Court, or to some other person by

Form No. 117.

Protection under Insol

vency Acts not to discharge.

Imprisonment no satisfaction.

name, who by such warrant shall be empowered to take the body of the person against whom such order shall be made;

and the gaoler or keeper of any gaol mentioned in such warrant shall be bound to receive and keep the defendant therein, until discharged under the provisions of this Act, or otherwise by due course of law;

and no protection order, or other proceeding granted by any Court, under any provisions for the relief of insolvent debtors, shall be available to discharge any defendant from any commitment under such last-mentioned order.

13. No imprisonment under this Act shall in anywise operate as a satisfaction or extinguishment of the debt, or other cause of action on which a judgment has been obtained; or protect the defendant from being anew summoned and imprisoned for any new fraud or other default rendering him liable to be imprisoned under this Act; or deprive the plaintiff of any right to take out execution, or successive executions, against the goods and chattels of the defendant, in the same manner as if such imprisonment had not taken place.

Imprisonment 14. When any person shall, under the provisions herein under Act as before contained, be committed to prison from any Residen: der civil pro- Magistrate's Court, or Court of Petty Sessions, by any Resident

of debtors un.

cess of S.C.

Debtor to be discharged on

Magistrate or any two Justices of the Peace, he shall be com mitted to prison and be imprisoned in some public gaol in the Province in which such Court is situate; and shall be kept in that part of such gaol in which debtors imprisoned in such gaol under civil process from the Supreme Court are usually con fined; and be subject to any regulations made in respect of such debtors for the time being in force. (1)

15. Any person imprisoned under this Act, who shall have payment of paid or satisfied the debt or demand, or the instalments thereof debt and costs. payable, and costs remaining due at the time of the order of imprisonment being made, together with the costs of obtaining such order, and all subsequent costs;

shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the Clerk of the Court by leave of the Court, Resident Magistrate, or Justices of the Peace by which or whom the order of the imprisonment was made. (1)

(1) The 14th and 15th sections apply to proceedings under this Act, the provisions of the 76th and 77th sections of the Act of 1867 in respect to proceedings under that Act.

16. The eight preceding sections shall apply only to judgments Secs. 8 to 15 for payment of debt or damages of less than ten pounds in apply only

amount.

to judgments
under £10.

17. Whenever it is made to appear to the satisfaction of any Power to R.M. Resident Magistrate, having jurisdiction to the amount of the to hold to bail. claim, by affidavit of any plaintiff or his authorized agent, that he has a good cause of action against any defendant residing or being within his district, for any sum within the jurisdiction of such Magistrate under the said Act, and that there is probable cause the grounds of which shall be stated in such affidavit- Where debtor about to abfor believing that such defendant is about to leave the Colony, scond. with intent, fraudulently, to evade the payment of such sum;

it shall be lawful for such Magistrate to issue a warrant Warrant. under his hand, returnable immediately, and thereupon to cause such defendant to be brought before him, and upon investigation of the case, either to discharge such defendant or to hold him to bail for any sum not exceeding the amount sworn to in such affidavit:

Provided that it shall be lawful for any defendant against Deposit. whom such warrant has issued for any amount to deposit with the officer executing such warrant, or with the Clerk of the Court, in lieu of bail, such amount, with three pounds for costs;

and the sum so deposited shall be paid, applied, and disposed of according to the judgment of the Court in the action in which the deposit is made:

Provided also, that it shall be lawful for any Resident Magis- Hearing. trate before whom any defendant is brought, under authority of

any warrant to be issued as aforesaid,-with the consent in By consent.
writing of the defendant,-to hear and finally adjudicate upon the
claim of the plaintiff in such proceeding.

18. In any case in which any Resident Magistrate hears and R.M. may orfinally adjudicates upon the claim of any plaintiff, under the der immediate power contained in the preceding section, and gives judgment execution may for the plaintiff;

it shall be lawful for him to make an order for the immediate payment of the amount of such judgment, with costs not exceeding forty shillings;

and execution may be at once issued, notwithstanding that the sum received for debt or damages does not amount to ten pounds;

and such other proceedings may be had thereon as if the same were a judgment obtained in the ordinary course of procedure.

payment, and

issue at once.

If judgment

award com

19. If, in any such proceeding, judgment is given for the against plain- defendant, it shall be lawful for any Resident Magistrate giving tiff, R.M. may such judgment—at his discretion-to award to such defendant, by way of compensation, any sum not exceeding twenty pounds; and such award shall be deemed to be a judgment of the Court, and execution may issue thereon.

pensation.

R.M. may

20. Whenever neither a Judge, nor Registrar, nor Deputy grant writ of Registrar of the Supreme Court shall reside within any district constituted under the said Act;

arrest.

the Resident Magistrate of such district shall have the same powers, in all cases, as the Supreme Court, to grant a writ of arrest for the purpose of holding to bail a defendant who is about to quit the Colony; and also to order the person arrested to be discharged from custody, or the bail-bond to be given up, that it may be cancelled, or the writ of arrest to be set aside :

Provided always, that it shall not be necessary to issue a writ of summons in the Supreme Court, before a writ of arrest may be granted by a Resident Magistrate:

Provided always, that any writ of arrest, and all proceedings thereon, may be dealt with by a Judge of the Supreme Court, as though such writ had issued from that Court:

Provided also, that the rules for the time being in force regulating the practice and procedure in the application for issue of and generally with regard to writs of arrest to be issued by Judges of District Courts, (1) shall apply to writs of arrest to be

(1) The following are the rules above referred to :

33. But in actions on bills of exchange, promissory notes, or other written instruments, any of the parties to which are designated by the initial letter or letters, or some contraction of the Christian or first name or names, it will be sufficient in any plaint, summons, or subsequent proceeding, to designate such party by the same initial letter or contraction of the Christian or first name instead of stating the Christian or first name in full.

310. The application for a writ of arrest must be supported by affidavit. In general the affidavit must set forth the Christian or first name and the surname of the defendant in full; but in actions upon bills of exchange, promissory notes, or other written instruments, the provisions of Rule 33 shall be applied to affidavits, and other proceedings appertaining to, and also to writs of arrest.

311. Where the defendant is described in the writ of arrest or affidavit to hold to bail, by initials or by a wrong name, or without a Christian or first name, the defendant shall not be discharged out of custody, or the bail-bond delivered up to be cancelled, on motion for that purpose, if it shall appear to the Judge that due diligence has been used to obtain knowledge of the proper

name.

312. The affidavit must set forth in full such circumstances as shall satisfy

issued by Resident Magistrates under this section of this Act, and shall be observed accordingly.

21. The forms referred to by number only in this Act are those Forms and translations. in the Schedule hereto, and the provisions contained in the thirty-ninth section of the said Act shall apply to the forms in the Schedule hereto.

DEBTORS' WRIT OF ARREST ORDINANCE, 1851. (15 VICT., SESS. XI., No. 1.)

An Ordinance to provide for the Arrest of Debtors escaping from Title, the Islands of New Zealand. [20th June, 1851.]

WHEREAS debtors cannot be restrained from leaving the Islands Preamble. of New Zealand, except by a writ of arrest, issued under the order of a Judge of the Supreme Court; and whereas it may often happen that immediate access cannot be had to a Judge of the Supreme Court for the purpose of obtaining such order: Be it therefore enacted by the Governor-in-Chief of New Zealand, with the advice and consent of the Legislative Council thereof, as follows:

1. That it shall be lawful in any settlement where there is a Arrest of Registrar of the Supreme Court, in the absence from the settle- debtors escaping from ment of a Judge of the Supreme Court, for such Registrar of the the Colony. Supreme Court, and in every settlement where there is no Registrar of the Supreme Court for a Resident Magistrate, to issue a warrant under his hand, for the apprehension of any person so intending to leave the Islands of New Zealand: who shall thereupon give security to the satisfaction of the said. the Judge that there is reasonable and probable cause for believing that the defendant is about to quit the Colony; and if the affidavit allege that the plaintiff has been informed and believes that the defendant is about to quit the Colony, it must also state the name and description of the person from whom such information is derived.

314. Every such writ shall continue in force for six clear calendar months after the date thereof.

315. In all other respects, the rules of procedure in force, for the time being, in the Court of Queen's Bench, as to holding a defendant to bail, and as to the arrest and all proceedings connected therewith and consequent thereon, shall be taken to be in force in the District Courts, so far as they shall be consistent with the rules herein contained, and the laws of this Colony.

316. In the case of a suit for an account, it will be sufficient if the plaintiff swear, that he believes a particular sum at the least will be found justly due to him upon a balance as the result of the suit, if the account were taken.