Debtors Act 1870

Debtors Act 1870

An Act to make better provision for the abolition of imprisonment for debt

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART I - [Part I Heading inserted by No. 36 of 1958, s. 4 and Sched. 3 ]Preliminary

1.   Short title

[Section 1 Amended by 25 Geo. V No. 78 ]This Act may be cited as the Debtors Act 1870 .

2.   Commencement

[Section 2 Amended by 25 Geo. V No. 78 ]This Act shall come into operation on 1st January 1871.

PART II - Abolition of Imprisonment for Debt

[Part II Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]

3.   Abolition of imprisonment for debt

[Section 3 Amended by 21 Geo. V No. 36, s. 2 ][Section 3 Amended by 25 Geo. V No. 78 ]With the exceptions hereinafter mentioned, no person shall be arrested or imprisoned for making default in payment of a sum of money. There shall be excepted from the operation of the above enactment –

(a) default in payment of a penalty or sum in the nature of a penalty, other than a penalty in respect of any contract;

(b) default in payment of any sum recovered summarily before justices;

(c) default by a trustee or person acting in a fiduciary capacity and ordered to pay by the Supreme Court any sum in his possession or under his control;

(d) [Section 3 Amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] default by any Australian legal practitioner in payment of costs when ordered to pay costs for misconduct as such, or in payment of a sum of money when ordered to pay the same in his character of an officer of the Court making the order;

(e) default in payment for the benefit of creditors of any portion of a salary or other income in respect of the payment of which any court having jurisdiction in bankruptcy is authorised to make an order;

(f) default in payment of sums in respect of the payment of which orders are in this Act authorised to be made;

(g) default in payment by a husband to or for the benefit of his wife of any sum of money payable as alimony under or by virtue of an order of the Supreme Court or a judge thereof.

Provided, first, that no person shall be imprisoned in any case excepted from the operation of this section for a longer period than 6 months, and, secondly, that nothing in this section shall alter the effect of any judgment or order of any court for payment of money except as regards the arrest and imprisonment of the person making default in paying such money.

4.   Saving of power to commit for small debts

[Section 4 Amended by 25 Geo. V No. 78 ]

(1)  [Section 4 Subsection (1) amended by No. 55 of 1965, s. 5 ]Subject to the provisions hereinafter mentioned, and to the prescribed rules, any court may commit to prison for 6 weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court. Provided –

(a) that the jurisdiction by this section given of committing a person to prison shall, in the case of any court other than the Supreme Court, be exercised only subject to the following restrictions; that is to say:

(i) Be exercised only as respects a judgment of the Supreme Court when such judgment does not exceed $100 exclusive of costs;

(ii) [Section 4 Subsection (1) amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] .  .  .  .  .  .  .  .  

(b) that such jurisdiction shall only be exercised where it is proved to the satisfaction of the court that the person making default either has, or has had since the date of the order or judgment, the means to pay the sum in respect of which he has made a default, and has refused or neglected, or refuses or neglects, to pay the same.

(2)  Proof of the means of the person making default may be given in such manner as the court thinks just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath, according to the prescribed rules.

(3)  Any jurisdiction by this section given to the Supreme Court may be exercised by a judge sitting in chambers, or otherwise in the prescribed manner.

(4)  [Section 4 Subsection (4) omitted by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] .  .  .  .  .  .  .  .  

(5)  For the purposes of this section any court may direct any debt due from any person in pursuance of any order or judgment of that or any other competent court to be paid by instalments, and may rescind or vary such order.

(6)  Persons committed under this section may be committed to any gaol; and every order of committal shall, subject to the prescribed rules, be issued, obeyed, and executed in the like manner as nearly as may be as a writ of capias ad satisfaciendum.

(7)  No imprisonment under this section shall operate as a satisfaction or extinguishment of any debt or demand or cause of action, or deprive any person of any right to take out execution against the lands, goods, or chattels of the person imprisoned, in the same manner as if such imprisonment had not taken place.

(8)  Any person imprisoned under this section shall be discharged out of custody upon a certificate signed in the prescribed manner to the effect that he has satisfied the debt or instalment of a debt in respect of which he was imprisoned, together with the prescribed costs, if any.

(9)  [Section 4 Subsection (9) amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] Every order made by the Magistrates Court (Civil Division) may be set aside or varied by a judge, in such manner and upon such terms as he thinks fit, upon application being made to him in a summary way; and a judge may order the release of any person arrested under such order in the absence of such person.

5.   Power to arrest defendant about to quit Tasmania

[Section 5 Amended by 25 Geo. V No. 78 ]

(1)  A person shall not be arrested upon mesne process in any action.

(2)  [Section 5 Subsection (2) amended by No. 55 of 1965, s. 5 ]Where the plaintiff in any action in the Supreme Court in which, if brought before the commencement of this Act, the defendant would have been liable to arrest, proves at any time before final judgment by evidence on oath, to the satisfaction of a judge, that the plaintiff has good cause of action against the defendant, to the amount of $50 or upwards, and that there is probable cause for believing that the defendant is about to quit Tasmania unless he be apprehended, and that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, a judge may in the prescribed manner order such defendant to be arrested and imprisoned for 6 months, unless and until he has sooner given the prescribed security, not exceeding the amount claimed in the action, that he will not go out of Tasmania without the leave of the court or a judge.

(3)  Where the action is for a penalty or sum in the nature of a penalty other than a penalty in respect of any contract, it shall not be necessary to prove that the absence of the defendant from Tasmania will materially prejudice the plaintiff in the prosecution of his action, and the security given (instead of being that the defendant will not go out of Tasmania) shall be to the effect that any sum recovered against the defendant in the action shall be paid, or that the defendant shall be rendered to prison.

6.   Sequestration against property of debtor

[Section 6 Amended by 25 Geo. V No. 78 ]Sequestration against the property of a debtor may be issued by the Supreme Court in the same manner as if such debtor had been actually arrested.

7.   

[Section 7 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

8.   Definition of term "prescribed"

[Section 8 Amended by 25 Geo. V No. 78 ]In this Part the term

prescribed means prescribed by General Rules to be made by the judges.

PART III - [Part III Heading amended by 25 Geo V No. 78 ][Part III Heading renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]Fraud

9.   

[Section 9 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

10.   

[Section 10 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

11.   

[Section 11 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

12.   

[Section 12 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

13.   Debts incurred by fraud

[Section 13 Amended by 25 Geo. V No. 78 ]Where a debtor makes any arrangement or composition with his creditors under the law relating to bankruptcy, he shall remain liable for the unpaid balance of any debt which he incurred or increased, or whereof before the date of the arrangement or composition he obtained forbearance by any fraud, provided the defrauded creditor has not assented to the arrangement or composition otherwise than by proving his debt and accepting dividends.

14.   

[Section 14 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

15.   

[Section 15 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

16.   

[Section 16 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

17.   

[Section 17 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

18.   

[Section 18 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

19.   

[Section 19 Repealed by 7 Edw. VII No. 36, s. 3 ].  .  .  .  .  .  .  .  

20.   

[Section 20 Repealed by 14 Geo. V No. 69, s. 3 ].  .  .  .  .  .  .  .  

PART IV - Warrants of Attorney, Cognovits, and Orders for Judgment

[Part IV Renumbered by No. 36 of 1958, s. 4 and Sched. 3 ]

21.   Warrant of attorney and cognovit actionem to be signed in presence of Australian legal practitioner

[Section 21 Amended by 25 Geo. V No. 78 ][Section 21 Substituted by No. 23 of 2009, s. 8, Applied:16 Jun 2009] A warrant of attorney to confess judgment in a personal action or a cognovit actionem is invalid unless –

(a) the nature and effect of the warrant of attorney or cognovit actionem is, before the person signs it, explained to the person by the person's Australian legal practitioner; and

(b) the person's Australian legal practitioner is present when the person signs the warrant of attorney or cognovit actionem and attests, by signing as a witness, the signature of the person.

22.   Warrant, &c., not formally executed invalid

A warrant of attorney to confess judgment or cognovit actionem not executed in manner aforesaid shall not be rendered valid by proof that the person executing the same did in fact understand the nature and effect thereof, or was fully informed of the same.

23.   Filing of warrant and cognovit

Where in an action a warrant of attorney to confess judgment or a cognovit actionem is given, the same, or a true copy thereof, shall be filed within 14 days after the execution thereof with the Registrar of the Supreme Court; and unless the same or such copy thereof is so filed within the said period, the same shall be deemed fraudulent and shall be void; and if any such warrant of attorney or cognovit actionem so filed was given subject to any defeasance or condition, such defeasance or condition shall be written on the same paper or parchment with the warrant or cognovit before the filing thereof, otherwise the warrant or cognovit shall be void.

24.   Filing of judge's order to enter up judgment, &c.

Where a judge's order made by consent is given by a defendant in a personal action in the Supreme Court whereby the plaintiff is authorised forthwith or at any future time to sign or enter up judgment, or to issue or to take out execution, whether such order is made subject to any defeasance or condition or not, then the order shall, together with an affidavit of the time of consent being given, and a description of the residence and occupation of the defendant, be filed with the Registrar of the Supreme Court within 14 days after the making of the order, otherwise the order and any judgment signed or entered up thereon, and any execution issued or taken out on such judgment, shall be void.

25.   Application to judge's order of Warrants of Attorney Act 1822

The provisions of the" Act of the third year of King George the Fourth, chapter 39", relating to liberty to file a warrant of attorney or cognovit actionem, or a copy thereof, and for making certain entries and searches in relation thereto, and for entering satisfaction thereon, and for fees for search, and filing and taking office copies, shall extend and be applicable to every such judge's order.

26.   

[Section 26 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

27.   

[Section 27 Repealed by 25 Geo. V No. 78 ].  .  .  .  .  .  .  .  

SCHEDULE 1 - Acts to be Repealed

Section 27