Debtors Act 1888

Debtors Act 1888

An Act to amend the Debtors Act 1870

[Preamble Repealed by 25 Geo. V No. 78 ]

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:

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3.   Right of imprisoned debtor to call upon creditor to show cause

[Section 3 Amended by 25 Geo. V No. 78 ][Section 3 Amended by No. 46 of 1991, s. 4 and Sched. 2 ]

(1)  Any person committed to prison in any of the cases excepted from the operation of section 3 of the Debtors Act 1870 may at any time during imprisonment apply to a judge for a summons calling upon the person to whom is due or payable the sum of money for default in payment of which the debtor has been committed to prison, or the agent or attorney of such person, to show cause why such debtor should not be released from imprisonment.

(2)  If upon the hearing of such summons it shall not be proved to the satisfaction of the judge that the debtor had at the date of his imprisonment the means to pay the sum in respect of which he has made default and had refused or neglected to pay the same, or if in the opinion of the judge other sufficient reasons shall be shown why the debtor should be discharged from further imprisonment, such judge may order the release of such debtor from imprisonment, and the gaoler or other person having the custody of such debtor, upon having delivered to him any order of release made by any judge under the authority of this Act, shall thereupon discharge and release the debtor therein named from his imprisonment.

(3)  Proof that the debtor had, at the date of his imprisonment, means to pay the sum in respect of which he has made default, may be given in such manner as such judge shall think just; and for the purposes of such proof the debtor and any witnesses may be summoned and examined on oath in accordance with the prescribed rules.

4.   Power of judge to order debt to be paid by instalments

[Section 4 Amended by 25 Geo. V No. 78 ][Section 4 Amended by No. 46 of 1991, s. 4 and Sched. 2 ]It shall be lawful for any such judge when ordering the release of any such debtor from imprisonment to direct that the sum in respect of which such debtor has made default shall be paid by such debtor to the person to whom the same is due by such instalments as such judge shall think proper; and in case of default by the debtor in payment of any one or more of the instalments so ordered to be paid by the judge as aforesaid, such debtor may again be committed to prison in accordance with the provisions of section 4 of the Debtors Act 1870 .

5.   Penalty for failing to appear on summons

[Section 5 Amended by 25 Geo. V No. 78 ][Section 5 Amended by No. 55 of 1965, s. 5 ][Section 5 Amended by No. 46 of 1991, s. 4 and Sched. 2 ][Section 5 Amended by No. 67 of 1994, s. 3 and Sched. 1 ][Section 5 Amended by No. 27 of 1992, Sched. 1, Applied:30 Mar 1998] [Section 5 Amended by No. 38 of 2015, s. 26, Applied:13 Oct 2015] Any debtor or other person summoned under the provisions of the Debtors Act 1870 for the purpose of being examined as to the means of such debtor to pay the sum in respect of which he has made default, and who refuses or neglects, without sufficient cause, to attend and be examined before the court or judge before whom he is summoned to appear for the purpose aforesaid, or who refuses to produce before such court or judge, any books, papers, or writings which he has been required to produce as aforesaid, shall be liable to such fine not exceeding 10 penalty units as such court or judge shall impose upon him; and such court or judge may commit to prison as for contempt of court for one month any debtor or other person who shall have been ordered to pay any such fine as aforesaid and who shall make default in payment thereof; and the whole or any part of such penalty, in the discretion of the court or judge, after deducting the costs, shall be applicable towards indemnifying the party injured by such refusal or neglect; and the payment of such fine may be enforced in the same manner as money ordered to be paid by such court or judge.

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7.   Short title

This Act may be cited as the Debtors Act 1888 .