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

Ex parte Hutchinson, In re Terry v. Meehan (1830) NSW Sel Cas (Dowling) 465; [1830] NSWSupC 51

fieri facias, sheriff's liability, conveyancing, recovery of deposit, fee system of administration, reception of English law, liability of sheriff, law reporting

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 10 July 1830

Source: Sydney Gazette, 13 July 1830[1 ]

In this case the Court had set aside an execution at the suit of Terry against Meehan's estate.  At the Sheriff's sale several persons had become purchasers of parts of the property respectively, and paid their respective deposits into the hands of the Sheriff.  Amongst these persons was Hutchinson.  After the execution was set aside by the Court, the Sheriff repaid in full the deposit money to all the purchasers except Hutchinson.  An order had been made on the Sheriff to repay him his deposit also, but the Sheriff had paid the amount into the Colonial Treasury for Sheriff's fees and poundage arising upon the sale under the execution, and had thereby incapacitated himself from complying with the order.  As matter of arrangement between the Government and the Sheriff it is known he receives a fixed stipend, and the fees of his office are paid into the Colonial fund.  With respect, however, to his official liability to the public, he stands in the same situation as a Sheriff in the mother country.  The Sheriff having omitted to comply with the order of the Court for the reason suggested, a motion was made against him for not obeying the order of the Court.  The motion was distinctly understood at that time not to be made in a hostile spirit, but merely to raise the question, whether he was bound to repay the money, and might not retain it for his fees and poundage.  The very great pressure of business during the last and the present terms, which has incessantly occupied the time of the Judge, prevented us from turning our attention to this matter sooner.  We have now fully and maturely considered the case, and are of opinion that Hutchinson is entitled to have his deposit repaid, it having been paid by him upon a consideration which has failed.  Supposing he was liable with the other purchasers to pay a rateable proportion of fees and poundage upon the sale of the property seized under the execution at the suit of Terry against Meehan, it is clear that at all events his deposit could not be retained for the whole amount.  But we think that the deposit ought to be repaid without deduction, and that he ought to be placed on the same footing with the other purchasers.  It is satisfactory to us to know, that the Sheriff will have his remedy over, if he be damnified by this proceeding, and we trust that this intimation will save him the trouble of seeking his remedy by action.  At present we have no alternative but to make the rule absolute for an attachment, but under all the circumstances, we direct that the attachment, if it shall be thought necessary to sue it out, shall lie in order to give the Sheriff reasonable time to obtain the money which he had inadvertently paid over to the Colonial Treasurer. - Rule absolute.

 

Notes

[1 ] The first part of this judgment (down to "from turning our attention ") is in the Dowling Select Cases, Vol. 2, (Archives Office of New South Wales, 2/3462, pp 336-337).  This shows that this Sydney Gazette account is an authentic version of the judgment.  The Select Cases version includes the following sidenote written by Dowling J.: "Where a bona fide purchaser of land at a Sheriff's sale paid his deposit and the execution was afterward set aside for fraud and the Sheriff returned deposits to other purchasers without retaining money to cover expences and poundage but afterwards kept the remaining deposit of Hutchinson to cover fees and poundage, and paid over the same to Government   Held that the Sheriff though a stipendiary officer, stood in the same situation as to liability to Suitors as the Sheriffs in England and was bound to pay over the whole of the deposit to the applicant or be liable to attachment."

Published by the Division of Law, Macquarie University