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Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Mackaness (1828) Sel Cas (Dowling) 545; [1828] NSWSupC 91

Sheriff's liability, fee system of administration, Forbes C.J. and Governor Darling, conflict between, set off, Crown immunity

Supreme Court of New South Wales

Forbes C.J., 8 October 1828

Source: Australian, 10 October 1828

This was an information presented by H. M. Attorney General against the defendant, to recover certain sums of money received by him while in office as Sheriff of the Colony, which said sums of monies, the declaration averred, had never been accounted for.[1 ]

From the testimony of several witnesses, who were called for the purpose of substantiating the action, it appeared that at the period of the defendant's appointment to the office of Sheriff, it was arranged, and such arrangement made officially known to the late Governor of the Colony, that the defendant was to receive a net income of 1000l. per annum, in lieu of any emoluments (such that were considered to attach and to belong to the office of Sheriff as in England), and that he was to become the Treasurer of the monies received by him in the way of fees, fines, &c.: but should, on a given day, pay the balance (if any) into the Colonial Treasure; which, on the other hand, in the event of those sums not amounting to 1000l. in the year, was to make good the deficiency out of the Colonial Fund.  Till the arrival of Mr. Mackaness in the Colony, the duties of Sheriff and Provost Marshal[2 ] were commonly exercised by the same individual, and were so amalgamated in the persons of the defendant's two immediate predecessors, - Uniacke and J. T. Campbell, Esqrs.  The defendant superceded [sic] Mr. Campbell in these offices, and during the residue of the Government of Sir Thomas Brisbane, and for that period of the present Administration up to the first quarter of the year 1827, received, in addition to the sum of 1000l. per annum as Sheriff, the further sum of 91l. 5s. as Provost Marshal.  On the arrival of the present Governor, it was intimated to the defendant, that it would be necessary, for uniformity sake, that he should pay all monies received, into the office of the Colector [sic] of Internal Revenue, his own salary being paid from the Colonial Treasury.  In the early part of the year 1827, a correspondence took place relative to this 91l 5s., which the defendant was not considered entitled to, but which he deemed, according to Act of Parliament and immemorial usage, and this sum the defendant continued to charge in the statement of accounts furnished by him to December 1827, with other sums, to recover which the present suit was commenced on the part of the Crown.

The Solicitor General produced, in support of his case, a voluminous body of documentary evidence.

The defendant's Counsel also took several legal objections to the information, &c.

The learned Chief Justice summed up,[3 ] and the Assessors, after consulting for nearly half an hour, found a verdict for the defendant, subject to the opinion of the Court, as to whether the defendant could set off his salary as Provost Marshal, against fees and fines received by him in his office of Sheriff, he holding both appointments at the same time.


Forbes C.J., Stephen and Dowling JJ, January 1829[4 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 123-124]

[Where the Sheriff of N.S.W. received a salary in lieu of all fees of Office, and agreed to account to the Treasury for fees received   Held in action against him for fees not accounted for, that he could not retain the money to pay himself the arrears of Salary claimed to be due to him whilst holding another distinct and separate office, called "Provost Marshall" The Statutes of set off do not apply to the Crown.] [5 ]

[p. 123]

Rex v Mackaness

Coram Chief Justice

This was an Information filed by the Attorney General against against [sic] John Mackaness Esqr late Sheriff of New South Wales.  The first Count stated that Defendant late Sheriff of New South Wales is indebted to H.M. in the sum of 1,000£.  For that on the 1st January 1827 at Sydney &c in consideration that H.M. the King at the special instance & of said Defendant would appoint him said Defendant to the Office of Sheriff of said Colony he said Defendant and then and there faithfully promised his said Majesty justly and truly to execute the office of such Sheriff [p. 124] and to render a true and just account to H.M. of the several fines, fees, dues, and, sums of money received by him the said defendant as Sheriff and to pay over the same without any deduction &c annually on the 1st January in each and every year.  And although His said Majesty confiding in said undertaking of said Defendant did on the day and year last aforesaid at Sydney aforesaid appoint the said Defendant to the office of Sheriff and although said Defendant did afterwards on the day and year last foresaid receive and take divers fines fees &c amounting in the whole to the said sum of 1,000£ in his capacity of Sheriff and although His said Majesty, afterwards, on the 1st day of January 1828 at Sydney &c commanded and required the said Defendant to render a just and true account of the fees &c received by said Defendant in his capacity of Sheriff and also to pay over the same to His said Majesty yet said Defendant not regarding his said promises but [p. 125] to deceive and defraud His Majesty hath not rendered to him a just and true account of the several fines &c received by said Defendant as Sheriff, nor has he handed over the same without deduction & but he hath hitherto wholly refused and still refuses so to do.

Counts for money had and received, and on account stated Pleas 1. General issue.  2nd that Defendant entered into a recognizance to account with His Majesty for all fees &c which Defendant had done  3rd a sett off for arrears of salary to the Defendant as Provost Marshall.

This case came on for argument on Friday the 31st December, when Sampson SG. appeared for the Crown and Dr Wardell for the Defendant, the Court took time to consider of the case, and now Judgment of the whole Court was declared by Dowling J.

At the trial of this cause, before his honor the Chief Justice.  The Assessors found a verdict for the Defendant subject to the opinion of the Court in the following case:  The Defendant was [p. 126] de facto the Provost Marshal of N.S.W. and received Salary at the rate of £91.5. per annum to the 31 day of December 1826; not having received the salary.  There was no evidence of the Governor having revoked or annulled the office of Provost Marshall, the Defendant continued and was such officer, de facto, until the 31st day of December 1827; and not having received the salary for the said last mentioned year, which had become due, the Defendant retained that amount out of certain fees received by him as Sheriff (his said appointment of Sheriff, being distinct from that of Provost Marshall) and which said fees the said Defendant had by an arrangement with H. M's Government agreed to pay and account for HM's Treasury in consideration of a yearly salary paid to the defendant as Sheriff instead of such fees.  The Assessors therefore leave the above case to the to the [sic] determination t the Court and if &c.

The question in this case is whether the Defendant is entitled to set off, and have allowed [p. 127] in the action against him for fees received by him in his office of Provost Marshall.  I am of opinion that he is not entitled to such set off.

It was contended that by force of the Statute 33 Hen 8. C. 39. s. 79 he is in conscience and equity entitled to set off the salary due to him as provost Marshall.  I am of opinion that this is not a case within that statute so far as that statute is applicable to his case he seems to have had the full benefit of it, by being allowed to retain from the Sheriffs fees, certain disbursements made by him in the course of his office.  Then will the statutes of sett off. 2. G. 2. C. 22. & 8. G. 2. C. 24 help him?  I think not.  It is conceded in argument that a Statute does not bind the King unless he is expressly named in it but it is contended that in as much as His Majesty has condescended to waive his high Estate and being a common action of assumsit, all the incidents to that form of action are induced and this case is to be treated as a cause between party and party[.]  I do not accede [p. 128] to that proposition.  The King by virtue of his prerogative may sue in what Court he pleases, and adopt such form of proceeding as he thinks proper for the recovery of his debt.  This is the King's Court and we are bound ex officio to take notice of his prerogative and I am of opinion that by adopting this form of action.  This King is not estopped from disputing the right of the Defendant to set off this sum unless it is clearly a case in which by law the right of sett off claimed in this case would be allowed.  It is quite clear from the scope and language of the statutes of set off, that they apply to matters in dispute arising between party and party and not between the King and his subjects.  But assuming that not to be so, is this a case within those statutes.  I am clearly of opinion that it is not.  In the first place these are two distinct and seperate offices.  That of Sheriff is purely of a civil nature, whereas that of Provost Marshall is peculiarly of a Military character.  Strictly speaking Provost is the executioner of an army is an officer appointed [p. 129] to secure deserters and other criminals.  He is to hinder soldiers from pillaging, to Indict offenders and see the sentence passed on them executed.  He also regulates the weights and measures, and the price of provisions and so forth in the army.  The special verdict finds that by an arrangement with His Majestys Government, the Defendant had agreed to pay and account for to His Treasury the fees recovered by him as Sheriff in consideration of a yearly salary paid to him for executing the Office.  This was an absolute agreement and I think it imposed upon him a duty and obligation to pay over such fees at all events[.]  His office of Provost Marshall, was of a distinct and seperate character, and even if the statutes of set off applied to a suit between the King and a subject, I think there is not here that mutuality of debt between His Majesty, and the Defendant, as would bring the case within the operation of those statutes.  If the Defendant has any remedy for his salary as Provost Marshall it must be by application to the same from absence his appointment was derived.  It [p. 130] appears to me that Judgment must be given for the Crown.

Forbes C.J. and Stephen J. concurred with me in this Judgment, and I delivered it in the name of the whole Court.

Judgment for the Crown.[6 ]


[1 ] See also Sydney Gazette, 10 October 1828.  Mackaness also made a claim on the Colonial Secretary for what he thought was owed to him.  Under Secretary Twiss sent the documents to Governor Darling on 5 September 1829, including Mackaness' defence to this action: Historical Records of Australia, Series 1, Vol. 15, pp 56-161.

On the right of sheriffs' officers to take a commission of one per cent on sales, see Campbell v. Cooper in Sydney Gazette, 29 September 1829.  The court held that the sheriff had no right to keep an auctioneer's fee on behalf of the Under Sheriff, the latter not being an officer of the Court.

This was not the only action against Mackaness, the former sheriff.  On 29 February 1828, he was convicted in the Supreme Court of assaulting James Foster, the then Solicitor General.  It took place at the sheriff's dinner at the Quarter Sessions held in Liverpool when Mackaness was still the sheriff.  Mackaness thought he had been slighted by Foster, and "sprang at him, seized him by the collar, tore his shirt, and otherwise used him in the most violent manner."  As Norton pointed out for the prosecution, this took place at the Quarter Sessions, where many assault cases were heard.  On 2 June 1828, Mackaness was sentenced to pay a fine of £5.  Source:Sydney Gazette, 3 March and 4 June 1828.

Mackaness distrusted Forbes C.J., thinking that he had been involved in Governor Darling's sending home to London a letter against him: correspondence between Forbes, Darling and Mackaness, March 1828, in Mitchell Library, A 1202, Reel CY 535; A 743.

The governor used this as another occasion to attack Forbes C.J. in a despatch to Murray: "I shall abstain Sir, from pursuing Mr Mackaness's Representation: though I do hope it will furnish you with some means of judging of the Character and description of several of the Individuals in the Employment of Government whom I have had to deal with here - Swindlers destitute in principle and Radicals from principle, opposed to the Government, with a Chief Justice receiving at his House and entertaining on a particular occasion/at a dinner given to a Stranger of distinction/ the Editor of the "Australian", a violent opposition Newspaper whose Calumnies on the Governor and the Government were at that moment of the grossest Character!" (Darling to Murray, 29 November 1828, Mitchell Library, A 1203, Reel CY 536, pp 840-841.)  For further material on the conflict between Forbes C.J. and the governor in 1828, see Convict Assignment Opinion, 1827; Ex parte Raine (No. 1), 1828; R. v. Howe, 1828; and on its resolution, the Newspaper Acts Opinion, 1827.

On the relationship between Mackaness and the governor, see Darling to Murray, 29 November 1828, (Historical Records of Australia, Series 1, Vol. 14, pp 501-513) in which Governor Darling tried to justify his refusal to confirm a grant of land to the former sheriff.  Characteristically of Darling, one of his charges against Mackaness was his alleged association with opponents of Darling's government.  Mackaness was a profligate and unprincipled man, said Darling, whom it had been necessary to sue in order to recover money he owed to the government.  Two judges, Forbes C.J. and Stephen J., gave testimonials of his character, which Darling discounted.  On Mackaness, see A. Halloran, "Some Early Legal Celebrities, Fourth Series" (1927) 12 Journal of the Royal Historical Historical Society 317, at 317-320.

On the right of sheriffs' officers to take a commission of one per cent on sales, see Campbell v. Cooper in Sydney Gazette, 29 September 1829.  The court held that the sheriff had no right to keep an auctioneer's fee on behalf of the Under Sheriff, the latter not being an officer of the Court. 

Dowling J. recorded this case in his Select Cases (Vol. 2, Archives Office of N.S.W., 2/3462) as follows:

"[p. 234] [The Under Sheriff has no right to retain money in his hands as and for Commission on the sale of a Defendants property under a fieri facias.]

"Sept 28th 1829

"Campbell v Cooper

"In Banco

"On motion calling upon the Sheriff to refund £20 detained by his under Sheriff at and for his Commission on the sale of an Estate under a fi fa in this cause.  Ultra poundage

"The Court resolved that by law the Sheriff had no authority to make such a charge  An usage had been attempted to be set up to justify the charge, but

"Per Dowling J.  No usage can sanction Sheriffs fees which are regulated by act of Parliament 29 Eliz.C.4. and he cited Rex v Crackenthorpe 2. Aust. 112 and Rex v Jones 1 Price 205.

"Rule absolute for Refunding of the Money

"Wentworth for Deft and Norton for the Sheriff

"See Woodgate v Knatchbull."

[2 ] The office of Provost Marshal of New South Wales had been in existence since 1788.  The first people to hold that office were required to fulfil the duties of sheriff, such as enforcing the judgments of the courts: see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 20-21.

[3 ] Forbes C.J. told the jury that they first had to decide whether the defendant was de facto Provost Marshal.  Other items had been sanctioned by the approval of a former governor and by practice, and the jury were to decide whether the present governor's objections made the defendant understand that he was no longer to make such appropriations.  Source: Sydney Gazette, 10 October 1828.

[4 ] From its position in the Select Cases, it is likely that this decision was made in early January, 1829.

[5 ] Civil actions were also taken against the sheriff: see Norton v. MackanessAustralian, 23 December 1829.

[6 ] This was not the only problem faced by the sheriff.  In his Select Cases (Source: Dowling,Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, pp 85-87), Dowling J. recorded the following for 1 May 1828:

[p. 85] "At the sitting of the Court this morning there was no sheriff, under sheriff, or any person representing the sheriff to attend the Judges.  In the course of the day John Carter Esq. the Sheriff made his appearance in Court.

"Forbes C.J.  (with the concurrence of Stephen J.  and Dowling J.) addressed the Sheriff, and said,

"'I am called upon to observe that at the meeting of the Court this morning, the Judges were obliged to enter upon their public functions without the attendance of the Sheriff or any other executive officer, either to pay respect to the dignity of the Court, enforce its orders, or even to protect it from outrage.  The court feels that [p. 86] its dignity is not a little compromised by being obliged to enter upon its duties without the attendance of any executive officer.  Complaints have also proceeded from the bar, of inconvenience felt and sustained by the suitors of the Court, in consequence of there being no sheriff or other officer in town for some days past, to whom money could be paid, or with whom any communication could be made upon the proceedings incident to the office of sheriff.  As the sheriff has appeared in the course of the morning, the court will take no further notice of the matter, than to express its regret that any such neglect should have occurred and to express a hope that no occurrence of the same kind will again take place'

"Mr. Carter excused himself by saying that when he left Sydney to go to his estate in the country, he left his under sheriff with full powers to discharge all the duties of the Sheriff's office.  The under sheriff was then in good health.  On his (Mr. C's) arrival in town this morning he found that very shortly after he left Sydney, the under [p. 87] sheriff became dangerously ill, and was now confined to his bed.  Contrary winds having arisen, the vessel in which he sailed did not arrive until this morning, and the moment he could clean himself, he came out to wait upon the Court. He certainly meant to be here in time, but was prevented by the cause suggested.

"Forbes C.J. The Court only hopes that such an occurrence will not take place again."

On the sheriff's duties concerning the gaol, see Darling to Forbes, 12 March 1828 enclosing a despatch from the Secretary of State on the subject: source, Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 160.

Published by the Division of Law, Macquarie University