33 VICTORIA, No. 345. Notice to the sheriff to summon jurors. 9 & 10 Vict. c. 95 s. 72. Verdict of jurors. Court may award costs where cause struck out for want of jurisdiction. 30 & 31 Vict. c. 142 s. 14. Judgments to be final. trial. 9 & 10 Vict. c. 95 s. 89. Cross judgments 75. Whenever a jury shall have been required to try any action in any county court, the registrar of such court shall issue such precepts and do all such things as by any Act now or hereafter to be in force is or shall be directed to be done by the proper officer of the Supreme Court for summoning a special jury of four men under the "Juries Statute 1865" in trials in the Supreme Court and the like fees of two pounds shall be paid at the time of giving said notice and before he shall be entitled to have such jury summoned by the party requiring the cause to be tried by a jury of four persons. 76. Whenever a jury shall have been required to try any action, four jurors only shall be impanelled and sworn and shall sit apart from the judge in like manner as a jury in the Supreme Court; and the verdict of a majority of such jurors shall be received in the same manner as an unanimous verdict; but where the jury shall have remained six or more hours in deliberation and the majority shall not agree as to the verdict to be given such jury may be discharged by the court from giving any verdict and the cause set down for re-hearing at such time as the judge may appoint, with a jury if either of the parties wish a jury, otherwise without a jury. When a verdict is given judgment shall be entered in accordance with the verdict, subject to the provisions of reservation of judgment new trials and nonsuits herein contained. 77. Whenever any action or suit is brought in a county court which the court has no jurisdiction to try the judge shall order the cause to be struck out (unless the parties consent to the court having jurisdiction to try the same) and shall have power to award costs in the same manner and to the same extent and recoverable in the same manner as if the court had jurisdiction in the matter of such plaint and the plaintiff had not appeared or had appeared and failed to prove his demand. Judgment and New Trial. 78. Every judgment of any county court and the time (if any) limited for satisfying the same shall be entered in the said register in the proper column for that purpose, and no other record thereof shall be necessary; and every such judgment except as herein provided shall be final and conclusive between the parties. But the judge shall have power to nonsuit the plaintiff in every case in which satisfactory proof shall not be given to him entitling either the plaintiff or defendant to the verdict of the jury or to the judgment of the court, and shall also in every case whatever have the power, and as often as he shall think fit, to order a new trial to be had upon such terms as he shall think reasonable, and in the meantime to stay the proceedings. 79. If there shall be cross judgments between the parties, execution shall be taken out by that party only who shall have obtained judgment for the larger sum, and for so much only as shall remain after deducting the smaller sum; and satisfaction for the remainder shall be entered as well as satisfaction on the judgment for the smaller sum; and if both sums shall be equal, satisfaction shall be entered upon both judgments. Execution and Interpleader. 33 VICTORIA, No. 345. debt to be paid by c. 95 s. 95. c. 108 s. 45. 80. The judge of any such court may if he shall think fit order that the amount of any judgment recovered in such court shall be Judge may order paid by the person liable to pay the same by instalments, together instalments. with interest on such judgment debt at such rate as the judge shall direct not exceeding eight per cent. per annum, at such times in such 19 & 20 Vict. sums and upon such terms as to giving security or otherwise as he may determine: Provided that upon the breach of any such order execution for the whole of the amount remaining unpaid at the time of such breach may forthwith issue as if such order had not been made, or for such portion thereof as the judge shall order either at the time of making the original order or at any subsequent time under the seal of the court. against the goods. 9 & 10 Vict. 81. Whenever any sum of money shall have been recovered by Execution the judgment of any county court and the same shall not be paid into court either forthwith or within the time (if any) limited for c. 95 s. 94. that purpose, the registrar of the said court at the request of the judgment creditor shall, after the expiration of the time limited for the payment of such money and without any previous notice or summons to the judgment debtor, issue out of such court a warrant chattels. Ib. s. 96. and other securities. in the form contained in the Sixth Schedule to this Act; and the Sixth Schedule. bailiff of the said court shall execute the said warrant, and all constables and other peace officers within their several jurisdictions shall aid and assist in the execution of every such warrant; and every bailiff or officer executing any such warrant as last aforesaid may by virtue thereof seize and take any of the goods and chattels personal Goods and of the person against whom such warrant shall have issued (excepting the wearing apparel and bedding of such person or his family and excepting also the tools and implements of his trade to the value of ten pounds, which shall to that extent be protected from such seizure), and may also seize and take any money or bank notes and any cheques bills of exchange promissory notes bonds specialties or Bills of exchange securities for money belonging to any such person against whom any such execution shall have issued as aforesaid; and the bailiff of the Ib. s. 97. said court shall hold any cheques bills of exchange promissory notes bonds specialties or other securities for money which shall have been so seized or taken as aforesaid as a security or securities for the amount directed to be levied by such warrant, or so much thereof as shall not have been otherwise levied or raised, for the benefit of the judgment creditor, who may sue in the name of the judgment debtor or in the name of any person in whose name the judgment debtor might have sued for the recovery of the sum or sums secured or made payable thereby when the time of payment thereof shall have arrived; and may also seize and take or levy and sell or dispose of any scrip or share or shares in any company standing in the name of Scrip or shares. the person against whom such warrant shall have issued, and the person or persons to whom the same shall or may be sold or disposed of shall thenceforth become and be the legal possessor or possessors of such share or shares and all benefit accruing therefrom; and such bailiff or officer shall immediately or as soon after such sale as may be by a sale note transfer every such share to such purchaser, and such sale note shall be a good valid and legal transfer of every share mentioned therein to all intents and purposes as if such transfer had No. 345. 33 VICTORIA, been made by the holder of any such share to such purchaser; and such purchaser shall become and be a shareholder in such company and entitled to all the rights and privileges and subject to all the liabilities thereof and the rules and regulations of the said company. Execution may be stayed in Judgment debtor may be summoned. s. 1. Seventh 82. If it shall appear to the satisfaction of the judge of any court in which a judgment shall have been recovered that the person liable to satisfy such judgment is unable from sickness or other temporary disability to pay the amount of such judgment or of any instalment thereof ordered to be paid as hereinbefore provided, such judge may stay the execution of such judgment whether a warrant of execution shall have issued or not for such time and upon such terms as to such judge shall seem fit, and may from time to time continue such stay of execution until such disability has ceased. 83. Whenever and so often as any sum of money recoverable under any judgment or order in any court holden under this Act 8 & 9 Vict. c. 127 shall remain unsatisfied, it shall be lawful for the person entitled to recover such money, whether any such warrant as aforesaid shall or shall not have been issued for the same, to obtain from time to time from the registrar of the said court a summons in the form or to the effect contained in the Seventh Schedule to this Act, or to the like effect, directed to the person liable to pay such money, and such summons shall be served personally; and if he shall appear in pursuance of such summons, he may be examined upon oath touching his estate and effects, and as to the property and means he has of paying satisfying and discharging such sum of money, and as to the disposal he may have made of any property, and as to his intention to leave the colony without paying such money as is still unsatisfied, or to depart elsewhere within the colony with intent to evade payment, and as to the mode in which the liability the subject of such judgment was incurred; and the person obtaining such summons as aforesaid, and all other witnesses whom the judge shall think requisite, may be examined upon oath touching the inquiries authorised to be made as aforesaid. And may be examined and imprisoned. 84. If a party so summoned as aforesaid shall not attend as required by such summons, and shall not allege a sufficient cause for not attending, or shall, if attending, refuse to be sworn or to disclose any of the things aforesaid, or if he shall not make answer touching the same to the satisfaction of such court or judge, or if it shall appear to such court by oral testimony or affidavit, or by both, that such party contracted the liability which was the subject of such judgment by any fraud or breach of trust, or has made or caused to be made any gift delivery or transfer of any property, or changed removed or concealed the same with intent to defraud the person entitled to such money as aforesaid, or with intent to defeat any execution issued upon such order or judgment; or if on such evidence as aforesaid it shall appear to the satisfaction of such court that the party so summoned has then, or has had since the time of obtaining such order or judgment, sufficient means and ability to pay the sum so recovered against him, and so due and unsatisfied as aforesaid, or any instalment thereof when an order to pay by instalments has been made, or that he is about to leave the colony without paying such money as is still unsatisfied, or to depart, elsewhere No. 345. within Victoria with intent to evade payment it shall be lawful for 33 VICTORIA, such court, if the judge thereof shall think fit, to order that unless such party shall pay into such court either forthwith or by such instalments as the judge may fix or within the time limited in such order the money so unsatisfied, with interest thereon at such rate as the judge shall direct not exceeding five per cent. per annum, and the costs of any fruitless writs of execution and of levies thereunder together with the costs of and occasioned by such summons and examination, he shall be committed to prison for a period not exceeding four months. (a) may be had on 85. In any case in which any defendant in any cause suit matter Examination or proceeding in any court holden under this Act shall personally the original appear at the trial or hearing of the same, the court, at such trial hearing. or hearing of same or at any adjournment thereof if judgment shall be given or order be made against the defendant, shall have the same power and authority of examining the plaintiff and defendant. and other parties touching the things hereinbefore mentioned, and of making an order as such court might have exercised under the provisions hereinbefore contained in case the plaintiff had obtained a summons for that purpose after judgment as hereinbefore mentioned. 86. Whenever any order for commitment shall have been made Form of comunder the provisions hereinbefore contained, and the money and mitment. costs named therein or any part thereof or any instalment shall not have been paid into court in pursuance thereof, the registrar of such court shall without any previous notice or summons to the party required to pay the same issue a warrant in the form in the Eighth Eighth Schedule. Schedule to this Act or to the like effect; and the bailiff of the said court and the keeper of the gaol to whom such warrant is directed shall respectively execute and obey the said warrant, and all constables and other peace officers shall aid and assist in the execution of such warrant. on 87. Any person imprisoned under this Act by virtue of any such Prisoner to be warrant as last aforesaid who shall have paid or satisfied the judg-payment of debt ment debt and costs remaining due at the time of the issuing of such and costs. warrant together with all subsequent costs, shall be discharged out of custody upon the certificate of such payment or satisfaction signed by the registrar of the court in which such judgment shall have been recovered. parte. 88. Any order of commitment under the provisions hereinbefore order may be er contained may (if the special circumstances of the case shall appear to any such judge to warrant it) be made by such judge ex parte and at any place in the colony and without notice on proof by affidavit only of any of the matters aforesaid, and in that case such order of commitment under the hand of such judge may be filed in any court holden under this Act for which such judge shall be appointed; and such person may be dealt with as if an order of commitment had been made as hereinbefore directed, and the warrant to be issued by the registrar in such case shall be in the form or to the effect in the Ninth Schedule to this Act. (a) A debtor imprisoned under this section is not entitled to his discharge, upon filing his Ninth Schedule. schedule as an insolvent.-Ex parte Robinson, 2 W. & W. (L.), 30. 33 VICTORIA, No. 345. Provision for discharging out of custody. Bailiff of other enforce warrant. 9 & 10 Vict. c. 95 s. 104. 89. Notwithstanding the provisions hereinbefore contained it shall be lawful for the judge of any county court at any time by order under his hand (if under the special circumstances of any particular case he shall think fit to do so) to direct that any person in custody under any such order as aforesaid shall be forthwith discharged, and he shall be forthwith discharged accordingly. 90. Whenever any sum of money shall have been recovered by County court to the judgment of any county court, any warrant for enforcing such judgment may be directed to the bailiff of any other county court, and shall be executed by him, and all other proceedings thereunder shall be proceeded with and enforced, and the prisoner if entitled to his release discharged in the same manner as if such judgment had been a judgment of such last mentioned court. Goods acquired bona fide and protected against writs of execu tion. 91. No warrant of execution issued out of any county court without notice against the goods of a debtor shall prejudice the title to such goods acquired by any person bona fide and for valuable consideration before the actual seizure thereof by virtue of such warrant, provided that such person had not at the time when he acquired such title notice that such warrant or any other warrant by which the goods of such debtor might be seized had been delivered to and remained unexecuted in the hands of the bailiff of any county court or other officer or person having the execution of such warrant. 19 & 20 Vict. c. 97 s. 1. Adjudication of goods seized. 19 & 20 Vict. c. 105 s. 31. 92. If any claim shall be made to or in respect of any goods or adverse claims to chattels taken in execution under the process of any county court or in respect of the proceeds or value thereof by any person not being the party against whom such process has issued, it shall be lawful for the registrar of such court or for any justice, upon application of the officer charged with the execution of such process as well before as after any action brought against such officer, to issue a summons calling before the judge of the said court or before any two justices as well the party issuing such process as the party making such claim; and thereupon any action which shall have been brought in the Supreme Court or in any county court in respect of such claim shall be stayed; and the court in which such action shall have been brought or any judge thereof or the judge before whom the said summons is returnable or such two justices, on proof of the issue of such summons and that the goods and chattels were so taken in execution, may order the party bringing such action to pay the costs of all proceedings had upon such action after the issue of such summons; and the judge of the county court or such two justices shall adjudicate upon such claim, and make such order between the parties in respect thereof and of the costs of the proceedings as to him or them shall seem fit. Execution may Supreme Court. 93. Whenever any sum of money shall have been recovered by issue out of the the judgment of any county court, the registrar (a) of such court upon the application of the judgment creditor or of any person on his behalf shall grant and deliver to the person making such Tenth Schedule. application a certificate in the form contained in the Tenth (a) The duty of the officer of the court here is simply ministerial, and the words as to granting the certificate are imperative.-Brooks v. Pettigrew, A.R., 21 Dec. 1863. (b) Where the clerk of a county court had improperly issued a certificate during a stay of proceedings, on which judgment was signed, and afterwards set aside by a judge in chambers as |