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

Norton v. Mackaness [1829] NSWSupC 84

sheriff's liability

Supreme Court of New South Wales

Trial, 18 December 1829

Source: Sydney Gazette, 19 December 1829

This action was brought to recover the sum of £120 8s. 11d. for money had and recovered, by the defendant when Sheriff of the Colony, in liquidation of various executions levied by the plaintiff.  

Mr. John James. -- I was under Sheriff during the Shrievalty of the defendant, and kept the accounts of the office; I believe the accounts now produced are correct up to the time of the last settlement with the plaintiff; one of the items, the sum of £18; is for an escape, which I undertook to pay, as it was through my own neglect, but I had no authority from defendant to do so, or any communication with him; there is also another item of £40, which never was received from the person who was employed to collect the executions, and who is now in gaol; the executions were returned satisfied, and plaintiff was attorney in all the cases; I considered my office liable for the £40, as it became deficient by the failure of the person who was employed by me to receive it.  I employed this person as a servant of the Sheriff, and was to pay him out of the proceeds of the sale; I have no doubt I informed defendant that I gave plaintiff credit for the £18, in the escape case, in an account; I have no doubt the account was submitted to the defendant, though he might have forgotten it.

Cross-examined by Mr. Mackaness.-- There is no date to the bill of particulars; defendant had been about eighteen months out of office before he was applied to for the amount; I have given an acknowledgment for £55 out of the account; I had given plaintiff instructions to sue out a writ against one Edwards who received the £40, but he said there was no use in proceeding against a man who had nothing.

Re-examined -- If I had paid the amount of this account to plaintiff, I would have charged it in account with defendant, with the exceptions of the £18, and the £40, which I considered to have been lost by my own act; I would have charged the remainder to the defendant; plaintiff has often told me if I did not pay the amount he would apply to defendant; plaintiff's money transactions in the office were always conducted in the ordinary course with me.

By the Court. -- I kept the accounts of the Sheriff, and they were shewn from time to time to the defendant, who sanctioned the mode in which I kept accounts with the Attorneys; I do not know when plaintiff first made the demand of £120 of the defendant; I have told him frequently that that sum was due to plaintiff, but defendant never admitted himself bound to pay it.

Mr. Mackaness addressed the Court for the defence, complaining of the length of time which had been suffered to elapse before the present demand had been made, and contending that, at all events, he was not liable for the £40, which had not been received, and which Mr. James had made self answerable for, together with the £18 for the escape.  

The Chief Justice was of opinion that the plaintiff could not, under this form of action, recover the items of £40 and £18, unless there were proof of an account stated, and a promise to pay on it.  The other parts of the account were not disputed, and for them the plaintiff was entitled to a verdict.  

Verdict for the plaintiff, £65 8s.

Published by the Division of Law, Macquarie University