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How to proceed to enforce full payment

Banks and Banking Companies

against each and every member of the said banking company or partnership, who shall refuse or fail to pay on demand the amount of contribution hereinafter mentioned, and by each and every of such writs, the Sheriff shall and may levy a sum in proportion to the number of shares in the capital stock of such company or partnership held by each such member respectively, sufficient to cover the amount of such moneys, costs, and expenses; and the said Sheriff is hereby authorised and required to make such levies at the instance of any member whose property he may have so seized, or who may have voluntarily paid the amount in manner aforesaid, and to pay over to such member the proceeds of such levies.

3. And be it enacted, that if the member against whom any such execution shall have been put in force, or who shall have voluntarily paid as aforesaid, his executors or administrators shall, by reason of the bankruptcy or insolvency of any member or members, or from any other cause, but without any neglect or wilful default on his own part be prevented from recovering any proportion of the moneys, costs or expenses which he shall have so paid, it shall be lawful for him, his executors or administrators, again to divide the amount of all such moneys, costs and expenses as shall not have been recovered by him or them into as many equal parts as there shall then be shares in the capital stock or partnership (not including the shares then under forfeiture) except the shares in respect of which such default shall have happened ; and every member for the time being of the company or partnership, and the executors or administrators of every deceased shareholder, except as aforesaid, shall rateably, according to the number of shares which they shall hold in the company or partnership, upon demand, pay one or more such last-mentioned parts to the shareholder against whom such execution shall have been put in force, or who shall have so voluntarily paid, as aforesaid, his executors or administrators, and in default of payment, he or they shall have the same remedy in all respects for the recovery thereof as under the provisions hereinbefore mentioned are given in respect of the original proportion of such moneys, damages, costs and expenses; and if any proportion of the said moneys, damages, costs and expenses shall remain unpaid by reason of any such bankruptcy, insolvency or other cause as aforesaid, such shareholder, his executors or administrators, shall have in like manner from time to time and by way of accumulative remedy, the same powers according to the circumstances of the case, of again dividing and enforcing payment of the amount of such proportion until he or they shall in the end be fully reimbursed the whole of the said moneys, costs, and expenses, excepting the portions belonging to the shares held by him or them.

CHARLES FITZGERALD,

GOVERNOR AND COMMANDER-IN-CHIEF.

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HEREAS in the sixth and seventh years of the reign of Her 6 & 7 Vic. present Majesty, certain Acts of the Imperial Parliament were passed, intituled respectively, * An Act for removing doubts as to the punishment which may c. 10 be awarded under the provisions of an Act of the fourth and fifth years of Her present Majesty, for taking away the punishment of Death in certain cases for offences therein specified; * An Act to amend the Laws relating to Pound Breach and c. 30 Rescue in certain cases; and whereas in the Seventh and eighth years of the reign of Her pre- 7 & 8 vic, sent Majesty, a certain other Act of the Imperial Parliament was passed, intituled, An Act to amend the Law as to Burning Farm Buildings; C. 62 and whereas in the eighth and ninth years of the reign of Her present s & 9 vic. Majesty, certain other Acts of the said Imperial Parliament were passed,

intituled respectively,
An Act to amend the Law of Real Property; c. 106
An Act to facilitate the Conveyance of Real Property; c. 119
An Act to facilitate the granting of certain Leases; c. 124

and whereas in the ninth and tenth years of the reign of Her present 9 & 10 vic. Majesty, certain other Acts of the said Parliament were passed, intituled respectively, * An Act for preventing malicious Injuries to person and property c. 25 by Fire, or by explosive or destructive substances;

An Act to abolish Deodands; - c. 62
An Act for compensating the Families of Persons killed by c. 98
Accident;

and whereas in the tenth and eleventh years of the reign of Her said 10 & 11 vic. Majesty, certain other Acts of the said Parliament were passed intibuled respectively, * An Act for extending the provisions of the Law respecting c. 66 Threatening Letters, and accusing parties with a view to extort Money; An Act for the more speedy Trial and Punishment of Juvenile c. 82

Offenders; and whereas it is expedient to adopt and apply the said several recited Adopted and ap Acts in the administration of justice in Western Australia: Be it ... therefore enacted, by His Excellency the Governor of Western Australia justice and its Dependencies, with the advice and consent of the Legislative Council thereof, that the said recited Acts and every clause, provision

WOL. I. H

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For an act done by him without jurisdiction, or exceeding his jurisdiction,” action may be

Adoption of Imperial Acts

and enactment therein respectively contained, except the fifteenth
section of the ‘Act respecting malicious Injuries to persons by Fire or
by explosive or destructive substances,’ shall be and the same is
hereby adopted and directed to be applied in the administration of
justice, so far as they can be applied respectively to the circumstances

of this Colony.
CHARLES FITZGERALD,
GoverNOR AND CoMMANDER-IN-CHIEF.

* Repealed by 24 & 25 Vic, c. 95 (Imp.), which repeal is adopted in this Colony by 29 Vic.., No. 5.

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No. 1
An Ordinance to protect Justices of the Peace from vexa-
tious Actions for acts done by them in execution of
their Office. [Assented to 27th November, 1850.

Who it is expedient to protect Justices of the Peace in the
execution of their duty: Be it therefore enacted by His
Excellency the Governor of Western Australia, by and with the advice
and consent of the Legislative Council thereof, that every action here-
after to be brought against any Justice of the Peace for any act done
by him in the execution of his duty as such Justice with respect to any
matter within his jurisdiction as such Justice shall be an action on the
case as for a tort; and in the declaration or plaint, it shall be expressly
alleged that such act was done maliciously and without reasonable and
probable cause; and if at the trial of any such action upon the general
issue being pleaded the plaintiff shall fail to prove such allegation, he
shall be nonsuit or a verdict shall be given for the defendant.
2. And be it enacted that for any act dome by a Justice of the
Peace in a matter of which by law he has not jurisdiction or in which
he shall have exceeded his jurisdiction, any person injured thereby or by
any act done under any conviction or order made or warrant issued by

maintaine, with such Justice in any such matter may maintain an action against such

out allegation ;

but not for an act done under

Justice in the same form and in the same case as he might have done
before the passing of this Ordinance, without making any allegation in
his declaration or plaint that the act complained of was done maliciously
and without reasonable and probable cause: Provided nevertheless, that

* no such action shall be brought for anything done under such convic

- - 15 f - - - - - ‘....”.”fter tion or order until after such conviction shall have been quashed, either

order, until to such conviction or order shall have been quashed ;

upon appeal or upon application to the Civil Court of the Colony; no
shall any such action be brought for anything dome under any such
warrant which shall have been issued by such Justice to procure the

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Justices of the Peace, d.c.

appearance of such party, and which shall have been followed by a conviction or order in the same matter until after such conviction or order shall have been quashed as aforesaid, or if such last-mentiomed warrant shall not have been followed by any such conviction or order, or if it be a warrant upon an information for an alleged indictable offence, nevertheless, if a summons were issued previously to such warrant, and such summons were served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode, and he did not appear according to the exigency of such summons in such case no such action shall be maintained against such Justice for anything done under such warrant.

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5. And whereas it would conduce to the advancement of justice and render more effective and certain the performance of the duties of Justices, and give them protection in the performance of the same, if Some simple means not attended with much expense were devised by which the legality of any act to be done by such Justices might be considered and adjudged by a Court of competent jurisdiction, and such Justice enabled and directed to perform it without risk of any action or other proceeding being brought or had against him : Be it therefore enacted that in all cases where a Justice or Justices of the Peace shall refuse to do any act relating to the duties of his or their office as such Justice or Justices, it shall be lawful for the party requiring such act to be done to apply to the Civil Court of this Colony upon an affidavit of the facts for a rule calling upon such Justice or Justices and also the party to be affected by such act to show cause why such act should not be done, and if after due service of such rule good cause should not be shown against it, the said Court may make the same absolute, with or without or upon payment of costs as to them shall seem meet, and the said Justice or Justices upon being served with such rule absolute shall obey the same, and shall do the act required, and no action or proceeding whatsoever shall be commenced or prosecuted against such Justice or Justices for having obeyed such rule and done such act so thereby required as aforesaid.

6. And be it enacted that in all cases where a warrant of distress

or warrant of commitment shall be granted by a Justice of the Peace

upon any conviction or order which, either before or after the granting

of such warrant, shall have been or shall be confirmed upon appeal, no

nor for an act dome under a warrant to compel appearance, if a summons were previously served and Ilot obeyed

If one Justice make a conviction or order, and another grant an order upon it, the action must be brought against the former, not the latter, for a defect in the colnviction or Order

No action
against Justices
for the manner
in which they
exercise a dis-
cretionary power

If a Justice refuse to do an act the Civil Court, may, by rule, order him to do it, and no action shall be brought against him for doing it

After conviction or order confirmed on appeal, no action for anything done under a Warrant upon it

If any action
be brought
where by this
Act it is pro-
hibited, a Judge
may set aside the
proceedings

Limitation of action

Notice of action

Defendant may plead the general issue

Tender and payment of money into Court

Justices of the Peace, doc.

action shall be brought against such Justice who so granted such warrant for anything which may have been done under the same by reason of any defect in such conviction or order.

7. And be it enacted that in all cases where by this Ordinance it is enacted that no action shall be brought under particular circumstances, if any such action shall be brought, it shall be lawful for a Judge of the Court in which the same shall be brought, upon application of the defendant and upon affidavit of facts, to set aside the proceedings in such action, with or without costs as to him shall seem meet.

8. And be it enacted that no action shall be brought against any Justice of the Peace for anything done by him in the execution of his office, unless the same be commenced within six calendar months next after the act complained of shall have been committed.

9. And be it enacted that no such action shall be commenced against any such Justice of the Peace until one calendar month at least after a notice in writing of such intended action shall have been delivered to him or left for him at his usual place of abode by the party intending to commence such action or by his attorney or agent, in which said notice the cause of action and the Court in which the same is intended to be brought, shall be clearly and explicitly stated, and upon the back thereof shall be endorsed the name and place of abode of the party so intending to sue, and also the name and place of abode or of business of the said attorney or agent if such notice have been served by such attorney or agent.

10. And be it enacted that in every such action the defendant shall be allowed to plead the general issue therein and to give any special matter of defence, excuse or justification in evidence under such plea at the trial of such action.

11. And be it enacted that in every such case, after notice of action shall be so given as aforesaid and before such action shall be commenced, such Justice to whom such notice shall be given may tender to the party complaining or to his attorney or agent, such sum of money as he may think fit as amends for the injury complained of in such notice ; and after such action shall have been commenced and at any time before issue joined therein, such defendant, if he have not made such tender, or in addition to such tender, shall be at liberty to pay into Court such sum of money as he may think fit, and which said tender and payment of money into Court, or either of them, may afterwards be given in evidence by the defendant at the trial under the general issue as aforesaid, and if the jury at the trial or the Judge of the Court, if the trial be without a jury, shall be of opinion that the plaintiff is not entitled to damages beyond the sum so tendered or paid into Court, or beyond the sums so tendered and paid into Court, then they or he shall give a verdict for the defendant, and the plaintiff shall not be at liberty to elect to be nonsuit, and the sum of money, if any, so paid into Court, or so much thereof as shall be sufficient to pay or satisfy the defendant's costs in that behalf, shall thereupon be paid out of Court to him, and the residue, if any, shall be paid to the plaintiff; or if, where money is so paid into Court in any such action, the plaintiff shall elect to accept the same in satisfaction of his damages in the

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