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

Cavenagh v Boucher (1831) NSW Sel Cas (Dowling) 469; [1831] NSWSupC 10

fieri facias - sheriff's rights - fee system of administration

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 29 January 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 45]

[Where the Sheriff having a writ of execution in his hands and before it is executed the Deft. & other debt and costs, he is not entitled to poundage [p. 46] aliter if he has actually levied]

[p. 45]

Jan 29 1831

Cavenagh v Boucher

The Plaintiff having recovered a judgment against the Defendant execution was taken out and a fi. fa. delivered to the Sheriff to execute.  The Sheriff did not in fact levy but he caused an advertisement to be inserted in the Sydney Gazette, advertizing a farm of the Defendant for sale to satisfy the execution.  Before the period arrived for [p. 46] the sale to take place, the Defendant paid the plaintiff the debt and costs and the Plaintiff gave the Sheriff notice not to proceed with the execution and there being in fact no levy or seizure the question was whether the Sheriff was entitled to his poundage.  The point was reserved for consideration and now after conference among the Judges.

Forbes CJ delivered the judgment of the Court which was that the Sheriff, having made no levyhe was not entitled to poundage by the Stat 29th Elizabeth, c. 4. and reference was had to the language of that statute and to what is said by the Court in Woodgate v Knatchbull 2 TR 148 and by Grose J. especially p.158.-

Rule Refused

Published by the Division of Law, Macquarie University