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

Clarckson v Pickering [1830] NSWSupC 36; sub nom. Clarkson v. Pickering (No. 2) (1830) NSW Sel Cas (Dowling) 853

civil procedure, perjury, sheriff's liability, criminal procedure

Supreme Court of New South Wales

Hearing, 1 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[pp 314-315]

[A Plaintiff had obtained a verdict by the testimony of perjured witnesses[1 ] and the court having refused a new trial on that ground the Plaintiff taxed his costs and took out execution, but the Defendant  paid the amount into [p. 315] the hands of the Sheriff with notice to retain the money until the result of a prosecution of Plaintiffs witnesses for perjuring. The witnesses having been convicted, the Defendant moved that the money paid into the hands of the Sheriff should be paid back again.  Held that this would not be done unless the Sheriff had been ruled to return the writ so as to authorize the Court in making a special order.]

[p. 314]June 1st 1830

Clarckson v Pickering

The Plaintiff had brought an action against the Defendant for goods sold and delivered and upon evidence of two witnesses the latter obtained a verdict.  A Motion had been made by the Plaintiff for a new Trial on a suggestion that the Defendants witnesses were perjured and that it was intended to prosecute them for perjury.  The Court declining to act on this suggestion refused the rule.  The defendant then taxed his costs and took execution against the Plaintiff the latter paid the costs but [p. 315] served the Sheriff with notice to retain the money in his hands until the result of certain prosecutions against the Defendants witnesses for Perjury.  The prosecutions went on.  One of the witnesses was tried and convicted of Perjury, and the other got off upon a matter of form.

S. Stephen now moved to have the costs of the Defendant now in the hands of the Sheriff paid over to the Plaintiff on the ground that the witnesses by whose evidence the Defendant got a verdict had been convicted of perjury.

Keith opposed the application as irregular and contended that the Sheriff had no right to retain the money in his hands without the intervention of the Court.

Per Curiam.  We regret we cannot accede to this application.  The Plaintiffs course has [p. 316] been mistaken.  If the Sheriff had been ruled to return the writ the Court might upon the ground now suggested have directed him to retain the money in his hands until the prosecutions were determined.  Without such a proceeding the Sheriff was bound to pay over the money to the defendant.

Rule discharged

Without Costs.

 

Notes

[1 ] For the trial of one of these witnesses, see R. v. Baxter, (1830) Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 275, which Dowling J. summarised as follows: "On the trial of an Indictment for perjury assigned upon Evidence given in a Civil Cause, and the prosecutor had neglected to produce the record of the cause in which the false evidence was given, the judge refused to delay the trial or go on with other evidence until the record was produced."  The defendant was acquitted at the direction of the judge.

Published by the Division of Law, Macquarie University