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

De Mestre v Ramplin [1831] NSWSupC 61

debt recovery - Sheriff's liability - fieri facias, collusive sale

Supreme Court of New South Wales

In banco, 24 September 1831

Source: Sydney Gazette, 27 September 1831[1 ]

In this case, a rule was obtained by Mr. Keith, on Saturday last, calling upon the Sheriff to show cause why the execution, together with all subsequent proceedings had thereon should not be set aside, with costs, for irregularity.

Mr. Keith stated, as his ground of motion, that in April 1830, an execution, at the suit of the plaintiff, to recover a debt of £15, and costs, was issued against the defendant, and levy made by the Sheriff on a farm of ninety acres, situate on the Liverpool Road, which was subsequently put up for sale, and knocked down to Mr. A. Polack, of George-street, for £11 5s.; Mr. Prout, the Under Sheriff acting as Auctioneer.  It was stated also, that after the farm was so knocked down to Mr. Polack, a man named Death insisted it was his last bid, and that he was the purchaser.  Upon this, an argument took place, and Death claimed, at all events, a fulfilment of the conditions of sale, one of which was, that, in the event of any dispute arising between the bidders, the property was to be put up again.  This, however, it was alleged, Mr. Prout refused to do, although urged by several persons present; but having received half-a-crown, as earnest-money, from Polack, they both went away, jeering at the man, death, and at the defendant who was then present.  This statement was supported by the affidavits of the defendant and of Death, both of whom also further stated, that the farm so sold by Mr. Prout is now in his possession; that they firmly believed the sale to have been collusive, and that Polack merely attended to purchase for Prout; inasmuch as, the defendant's adjoins Prout's own land, and is well-watered, whereas Prout's land has no water on it, so that he found it almost impossible to against his cattle.  Death also stated, that he would have gone as high as £70 for the farm, as he considered it was well worth that sum.

Upon this statement, so supported by affidavits, a rule nisi was granted, and Mr. F. Stephen appeared this day to show cause.  After some general observations, Mr. Stephen produced several affidavits, which completely negatived those on the other side; and from which it appeared, that the man, Death, attended the sale, not as a bona fide bidder, but on the part of the defendant, and that, as a matter of fact, he had not bid, either orally or by sign, at the time the farm was knocked down to Mr. Polack, the real purchaser; that the sale took place in April 1830, and in the May following the farm was regularly transferred from Polack to Prout, for the sum of £100, which has since been paid in cash, at various times; that when Mr. Prout purchased the farm from Polack, he was not in possession of any land adjoining it; but that, so late as the month of August following, in consequence of having purchased the farm, Mrs. Prout applied to Government to be allowed to take possession of 160 acres of unlocated land, adjoining her husband's farm on the Liverpool Road, instead of the much larger quantity to which she was entitled, under the Government regulations, as a marriage portion, which application was acceded to.  These facts were not only sworn to by the various parties concerned, but were also corroborated by the production of the receipt for the £100 paid by Mr. Prout to Mr. Polack, and Mrs. Prout's letter to the Surveyor General, requesting to be permitted to relinquish the land which she had already selected in consideration of receiving 160 acres adjoining her husband's farm.

The Court asked Mr. Keith if he meant to reply?

Mr. Keith, after looking through the affidavits, one of which, he observed, certainly did surprise him, said he had nothing to offer in support of the rule.

The Chief Justice said he had never heard a more satisfactory answer.

Rule discharged.



[1 ] See also Australian, 30 September 1831.

Published by the Division of Law, Macquarie University