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

Macquoid v Lamb [1832] NSWSupC 29

assumpsit - fieri facias, costs of - fieri facias, right to auction

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 6 April 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 67, Archives Office of New South Wales, 2/3250

 

[p. 149] Assumpsit by the Sheriff of New South Wales to recover the expense of a sale by auction of certain effects of one Charles Wilson, seized under a fi. fa. at the suit of the deft., & which sale by auction took place as was alleged at the special instance & request of the Deft.  The declaration contained a count for money paid to the defts use.  At the trial before Forbes C.J. there was an attempt to prove that the auctioneers who sold the goods, had been specially retained by the Deft, but the evidence was not sufficient to establish that fact.  There was however proof, that before thefi. fa. issued under which the goods in question had been sold, the deft had himself [p. 150] put a man in possession, & that the Sheriff by mistake afterwards paid this man the sum of £3.12 for possession money.  The sum bonâ fide sought to be recovered was about 22£.  The learned judge ruled that the Sheriff by law could recover no more than the poundage allowed by statute, upon the effects seized, & the necessary incidental expenses of the execution; that he clearly could not recover for the expense of an auction unless the auctioneer was employed at the Defts special request & for his benefit (Bilke v Havilock Campbell N.V.C Woodgate v Knatchbull 2.T.R.)  With respect to the possession money paid by mistake to a man employed by the Deft, before thefi. fa. was [?], the Sheriff was entitled to a verdict for that sum.  The assessors found for the Plf Damages £3.12.0.

[p. 151] Norton - now moved to deprive the plf of his costs under the Court of Requests act, the sum recovered being under 10£.  The rest of his claim he could not have recovered by law, & therefore he ought to pay the costs of the experiment, in taking on an unfounded claim, to one less than 10£, for which the Deft was liable.

Keith contra was stopped by the Court. 

Per Curium.  This certainly was a debateable question, & as the plf "actually sought to recover more than 10£," it is not in our opinion a case in which the plf must lose his costs.  Probably the Commissioner of the Court of Requests would not be inclined to take cognizance of an action brought by the plf in his [?] character, even for the sum of £3.12; & [p. 152] we should hesitate in granting a mandamus to compel to try such a case.

Rule refused.

Published by the Division of Law, Macquarie University