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

Doe dem Foster v Sinclair (1830) NSW Sel Cas (Dowling) 468; [1830] NSWSupC 67

fieri facias, application to land

Supreme Court of New South Wales

Dowling J., 15 September 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466

[p.16]

[Although the stat 54. G. 3. c.15 Sec 4 places land on the same footing as goods for the satisfaction of debts in N.S.W. it does not seem [p.17] to be necessary under an Execution upon a fi fa that an officer should be actually put into possession of land levied as the Judgment binds the lands.]

[p.16]

Wednesday 15th Sept 1830

Civil Side

Coram Dowling J

AssessorsJ Busby Esqr

RB Bettington Esqr

Doe demise  Jas Foster v Peter Sinclair

Ejectment for part of lands situate at Williams River 1050 acres granted by Crown to one Peter Sinclair.

Norton

Plaintiffs title conveyance from Mr Innes to Underwood & from him to Foster grant under seal [p.17] admitted and judgment & execution under which farm sold.

Original grant to Sinclair 30th June 1823 29th Decem 1827. conveyed to Underwood by deed which rests at Judgment at the suit of Campbell on 18 February & Fi Fa directed to levy the sum conveys the property.

Vide Vol. 45. p.95.

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 45, Archives Office of New South Wales, 2/3228[1 ]

 

[p. 99]

Dowling J I am of opinion that until the contrary is proved, it must be presumed that the Sheriff has done his duty.

It is true that the 54 G 3 places land on the same footing as personal property for the satisfaction of debts.  The title to land is matter of written evidence which [p. 100] will bind it.  The reason for actually put a man in possession of personal property popularly so called does not apply.  Judgment binds the land.

 

Notes

[1 ] The text continues in Vol. 45, but some of it is illegible.  Dowling stated the point of law at the end of the statement of record as follows.  The verdict was for the plaintiff.

Published by the Division of Law, Macquarie University