Remedies of Creditors against Debtors six 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 : (1.) 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 : (a) Be exercised only by a Judge or his Deputy and by an order made in open Court, and showing on its face the ground on which it is issued. (b) Be exercised only as respects a judgment of the Supreme Court at Law or in Equity, when such judgment does not exceed fifty pounds, exclusive of costs. (c) Be exercised only as respects a judgment of a Local Court by a Local Court Judge or his Deputy. (11.) 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 default, and has refused or neglected or refuses or neglects to pay the same. Proof of the means of the person making default may be given in such manner as the Court thinks just, and for the purpose of such proof the debtor and any witnesses may be summoned and examined on oath according to the prescribed rules. Any jurisdiction by this section given to the Supreme Court may be exercised by the Chief Justice sitting in Chambers or otherwise in the prescribed manner. 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 from time to time rescind or vary such order. Persons committed under this section by the Supreme Court may be committed to the prison in which they would have been confined if arrested on a writ of capias ad satisfaciendum; and every order of committal by the Supreme Court shall, subject to the prescribed rules, be issued, obeyed and executed in the like manner as such writ. This section, so far as it relates to any Local Court, shall be deemed to be substitution for sections 51 and 52 of the 'Ordinance for the Recovery of Small Debts and Demands, 1868;' and that Ordinance shall be construed accordingly, and shall extend to orders made by the Local Court with respect to sums due, in pursuance of any order or judgment of any Court other than a Local Court. 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. 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). Remedies of Creditors against Debtors stances to arrest Colony 4. Where the plaintiff in any action in the Supreme Court proves Power under at any time before final judgment by evidence on oath, to the satisfac- certain circumtion of the Chief Justice, that the plaintiff has good cause of action defendant about against the defendant to the amount of fifty pounds or upwards, and to quit the that there is probable cause for believing that the defendant is about to quit the Colony unless he be apprehended, and that the absence of the defendant from Western Australia will materially prejudice the plantiff in the prosecution of his action, the Chief Justice may, in the prescribed manner, order such defendant to be arrested and imprisoned for a period not exceeding six 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 Western Australia without the leave of the Court: Provided that the plaintiff claiming such order of arrest shall prosecute his suit with reasonable diligence; otherwise it shall be lawful for the said Chief Justice to discharge the party from custody. 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 Western Australia will materially prejudice the plaintiff in the prosecution of his action; and the security given (instead of being that the defendant shall not go out of Western Australia) 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. ruptcy Act, 1871 5. Nothing in this part of this Act shall in any way affect any right Saving for Bankor power under The Bankruptcy Act, 1871,' to arrest or imprison any person. 6. In this part of this Act the term 'prescribed' means as Definition of follows: As respects the Supreme Court, prescribed by general rules and As respects the Local Courts, prescribed by general rules to be And general rules and orders may respectively be made by such PART II.—PUNISHMENT OF FRAUDULENT DEBTORS 'prescribed ' of fraudulent debtors 7. Any person adjudged bankrupt, and any person whose affairs Punishment are liquidated by arrangement or by a composition, in pursuance of The Bankruptcy Act, 1871,' shall in each of the cases following be deemed guilty of a misdemeanour, and on conviction thereof shall be liable to be imprisoned for any time not exceeding two years, with or without hard labour; that is to say (1.) If he does not, to the best of his knowledge and belief, fully Remedies of Creditors against Debtors for the benefit of his creditors all his property, real and personal, and how, and to whom, and for what consideration and when he disposed of any part thereof, except such part as has been disposed of in the ordinary way of his trade (if any) or laid out in the ordinary expenses of his family, unless the jury is satisfied that he had no intent to defraud. (11.) If he does not deliver up to such trustee, or as he directs, all such part of his real and personal property as is in his custody or under his control, and which he is required by law to deliver up, unless the jury is satisfied that he had no intent to defraud. (III.) If he does not deliver up to such trustee, or as he directs, all books, documents, papers, and writings in his custody or under his control relating to his property or affairs, unless the jury is satisfied that he had no intent to defraud. (IV.) If after the presentation of a bankruptcy petition against him, or the commencement of the liquidation or position, or within four months next after such presentation or commencement, he conceals any part of his property to the value of ten pounds or upwards, or conceals any debt due to or from him, unless the jury is satisfied that he had no intent to defraud. com (v.) If after the presentation of a bankruptcy petition against him, or the commencement of the liquidation or composition, or within four months next before such presentation or commencement, he fraudulently removes any part of his property of the value of ten pounds or upwards. (VI.) If he makes any material omission in any statement relating to his affairs, unless the jury is satisfied that he had no intent to defraud. (VII.) If knowing or believing that a false debt has been proved by any person under the bankruptcy or liquidation or composition, he fail for the period of a month to inform such trustee as aforesaid thereof. (VIII.) If after the presentation of a bankruptcy petition against him, or the commencement of the liquidation or composition, he prevents the production of any book, document, paper, or writing affecting or relating to his property or affairs, unless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law. (IX.) If, after the presentation of a bankruptcy petition against him, or the commencement of the liquidation or composition, or within four months next before such presentation or commencement, he conceals, destroys, mutilates, or falsifies, or is privy to the concealment, destruction, mutilation, or falsification of any book or document affecting or relating to his property or affairs unless the jury is satisfied that he had no intent to conceal the state of his affairs or to defeat the law. (x.) If, after the presentation of a bankruptcy petition against Remedies of Creditors against Debtors him, or the commencement of the liquidation or composition, (XI.) If, after the presentation of a bankruptcy petition against (XII.) If, after the presentation of a bankruptcy petition against (XIII.) If, within four months next before the presentation (XIV.) If within four months next before the presentation of a (xv.) If within four months next before the presentation of a (xvI.) If he is guilty of any false representation or other fraud sconding with property 8. If any person who is adjudged a bankrupt, or has his affairs Penalty for abliquidated by arrangement or composition after the presentation of a bankruptcy petition against him, or the commencement of the liquidation or composition, or within four months before such presentation or commencement, quits the Colony and takes with him, or attempts or makes preparation for quitting the Colony and for taking with him, any part of his property to the amount of twenty pounds or upwards, which Penalty on fraudulently Remedies of Creditors against Debtors ought by law to be divided amongst his creditors, he shall (unless the jury is satisfied that he had no intent to defraud) be guilty of felony, punishable with imprisonment for a time not exceeding two years, with or without hard labour. 9. Any person shall, in each of the cases following, be deemed obtaining credit, guilty of a misdemeanour, and on conviction thereof shall be liable to be imprisoned for any term not exceeding one year, with or without hard labour, that is to say : &c. False claim, &c., a misdemeanour Debts incurred by fraud Order by Court for prosecution on report of trustee Expenses of prosecution Justices should consider any to disprove (1.) If in incurring any debt or liability he has obtained credit under false pretences or by means of any other fraud. (11.) If he has, with intent to defraud his creditors or any of them, made or caused to be made any gift, delivery or transfer of or any charge on his property. (II.) If he has, with intent to defraud his creditors, concealed or removed any part of his property since or within two months before the date of any unsatisfied judgment or order for payment of money obtained against him. 10. If any person in any bankruptcy or liquidation by arrangement or composition with creditors, in pursuance of 'The Bankruptcy Act, 1871,' wilfully and with intent to defraud makes any false claim, or any proof, declaration or statement of account which is untrue in any material particular, he shall be guilty of a misdemeanour, punishable with imprisonment not exceeding one year, with or without hard labour. 11. Where a debtor makes any arrangement or composition with his creditors under the provisions of The Bankruptcy Act, 1871,' 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. 12. Where a trustee in any bankruptcy reports to any Court exercising jurisdiction in bankruptcy that in his opinion a bankrupt has been guilty of any offence under this Act, or where the Court is satisfied, upon the representation of any creditor or member of the committee of inspection, that there is ground to believe that the bankrupt has been guilty of any offence under this Act, the Court shall, if it appears to the Court that there is a reasonable probability that the bankrupt may be convicted, order the trustee to prosecute the bankrupt for such offence. 13. Where the prosecution of the bankrupt under this Act is ordered by the Court, then, on the production of the order of the Court, the expenses of the prosecution shall be allowed, paid and borne, as expenses of prosecutions for felony are allowed, paid and borne. 14. When any person is charged with any misdemeanour_under evidence adduced the second part of this Act before any Justice or Justices, such Justice or Justices shall take into consideration any evidence adduced before him or them tending to show that the act charged was not committed with a guilty intent. guilty intent |
