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

Lucas v. McQuoid (1828) NSW Sel Cas (Dowling) 462; [1829] NSWSupC 82

fieri facias - stay of execution - Sheriff's liability

Supreme Court of New South Wales

Stephen and Dowling JJ, 19 December 1829

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

[p. 258] [After the Sheriff had a fi fa put into his hands but before execution thereof the Defendant in the cause obtained a rule to stay execution "Until the 11 April & that in the meantime all proceedings should be staid".  Held in an action against the Sheriff for selling the defendants goods after the 11 April, the execution not having been then set aside and no further rule served upon him that he was not liable.]

Saturday 19 December 1829

In Banco

Lucas v McQuoid

Trespass on the case for selling certain property of the Plaintiff under a fi fa after execution had been staid by the Court.  At the Trial before Forbes CJ the Plaintiff was nonsuited.  S. Stephen now moved for a new Trial on the ground of misdirection the case was this Cooper and Levy had obtained a judgment and execution against Lucas.  A fi. fa. was put into the hands of the Sheriff to Levy.  On the 30th March the Plaintiff obtained a rule nisi for staying the execution on the ground of irregularity until the 11 April and that in the meantime all proceedings should be staid.  a copy of this rule was served upon the Plaintiff's in the cause and upon the Deft the Defendant's staid execution until the 11th April after the 10th April, no further rule having been served, he proceeded to sell the Plaintiff's goods the prospect [p. 259] S. Stephen contended that the words in the meantime all proceedings to be staid operated as a restraint upon the Sheriff until the final disposition of the rule though disposed of after the 11th April.

Norton contra was stopped by the Court.  Stephen J & Dowling J. thought the nonsuit by the Chief Justice was perfectly right, and that the point was too plain for argument.  The Sheriff was no party to these proceedings became spent after the 11th April 1829 & the Sheriff was bound then to sell unless there was another stay of proceedings the point was too plain for argument.

Rule refused

 

Published by the Division of Law, Macquarie University