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

R v Macquoid [1832] NSWSupC 82

sheriff, liability of -  contempt of court, attachment - laches - fieri facias, land - laches

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 3 November 1832

Source: Sydney Herald, 3 November 1832>[1 ]

 

The King v. Macquoid. - This was a motion to stay a writ of attachment that had been issued against defendant as Sheriff, for not delivering over the proceeds of the sale of Ellis's land, which was sold under the executions of Harvey and McDonald.  The estate was purchased by Dr. Fattorini, who paid ten per cent. deposit, and gave his notes of hand for the remainder, but not approved bills, according to the terms of sale.  A bill of sale was executed by the Sheriff, and delivered to Dr. Fattorini.  The Sheriff had been attached for not handing over the whole amount of the sale in cash, in consequence of not having complied with the terms of sale, the Sheriff had filed a bill to stay the attachment, and on a former day a motion had been made to discharge the attachment.  Judge Dowling now delivered the opinion of the Court.[2 ]  They were of opinion the attachment should be set aside on the payment of costs by the Sheriff. - There was so much privity on the part of Harvey by his wife, that it was too much now to call upon the Sheriff to answer for acts to which they were parties.  They were of opinion the Sheriff should pay over the ten per cent. deposit, and hand over the vendees notes, subject to his (the Sheriff's) liability, should not they be paid when they arrived at maturity.  The Sheriff having handed over the bill of sale before the terms of the sale had been complied with, had made himself liable; in the mean time he would take such steps as to secure himself from loss, if they should not be paid.  Attachment set aside on the payment of costs.

 

Forbes C.J., Stephen and Dowling JJ, 3 November 1832

Source: Dowling, Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259

 

[p. 196] In this case the attachment had issued against the sheriff for not paying over in money,the proceeds of the sale of certain lands etc of one William Ellis sold under an execution at the suit of Henry Harvey & William Macdonald respectively.  The writ of Harvey had priority over that of Macdonald.  After the levy was made and before sale, M'Donald employed Lyons an auctioneer to sell. On the day of sale, it being suggested that [p. 197] the property seized would realize a larger sum if sold at credit, than for ready money under a forced sheriff's sale, a communication was made to Mrs Ellis, the wife of the plf upon subject.  Her husband being out of the colony then directed a Mr. Sherwood, (sworn to be her agent) to go to the sale and settle the terms in which the property should be sold.  Accordingly Sherwood attended, and it  was agreed between Messrs Sherwood and Macdonald and the auctioneer that the property should be sold on the following conditions of sale ``10 per cent deposit, and the residue by approved Bills at 6, 12, 10 & 24 months.  The two last bills to bear the present Bank interest at 10 per cent, with security on the land".  These conditions were notified at the sale, and Dr Fattorini became the purchaser and paid 10 per cent deposit into the hands of the sheriff.  The sale on credit produced a higher bidding [p. 198] than if it had to take place for ready money.  The purchaser sent to the under sheriff his notes of hand, (not approved bills) at the rates respectively mentioned in the conditions of sale, which were received by the under sheriff.  The sheriff executed a bill of sale of the land to Dr Fattorini and sent it to his attorney Mr Norton.  The sheriff returned the writ, with an indorsement stating that he had levied and received payment of 10 per cent deposit, and the purchasers notes of hand, which he was ready delivers over to the plf in the cause.  The purchaser had refused to give approved bills and security upon the land, whereupon, the sheriff was attached at the instance of the plf for not paying over the proceeds of the sale in money to the full amount of price fetched at a credit sale.  The sheriff filed his bill for an injunction to stay the execution of the writ of attachment.  On a former day a motion was made to discharge the attachment under [p. 199] the circumstances disclosed in the affidavits.  We have carefully considered the case, and are of opinion that the attachment should be set aside upon payment of costs by the sheriff.  There is so much of privity in the part of the plf Ellis (by his wife) to the terms on which the sale of the estate was affected, that we think, it would be far much to call upon the sheriff to pay over the proceeds of the sale in money, because it is quite clear that if the property ever sold for ready money it would not have produced the price obtained under the conditions of sale.  We think that the utmost the sheriff can be expected at present to do will be to pay the 10 per cent deposit and hand over to the plf in the cause the vendees notes, subject to liability for any default for non [p. 200] payment when at maturity .  The fact of the sheriff's executing the bill of sale and handing it over before the conditions were complied with has unfortunately laid him open to personal liability for the payment of the purchase money within the time stipulated by the conditions of sale.  In the mean time he must take such steps as he shall be advised to guard himself ag.t ultimate loss.  For the reason stated, however, we think the attachment ought to be set aside, on payment of costs, a condition we are compelled to impose for the laches disclosed in the affidavit.

Rule absolute upon payment of costs

 

Notes

[1 ]See also Sydney Gazette, 6 November 1832; and see Sydney Herald, 11 October 1832.

In Wilson v. MacquoidSydney Herald, 16 July 1832, the sheriff was found liable on replevin bonds, since it was found that both persons who made the pledges he authorised were worth nothing.

[2 ]Sydney Gazette, 6 November 1832, summarised the judgment as follows:

"The Court gave judgment to day, and decided that, there having been an assent on the part of Harvey, to a departure from the intended sale by the Sheriff, although the bills were not approvedbills, the Court did not consider that he could, in justice, be called upon to do more than hand over the deposit in his hands together with the bills, subject to his own personal liability in case they should not be paid when at maturity; he, in the mean time, taking such steps as he should be advised to secure himself against possible risk.

"Upon these conditions being performed, and upon payment of costs, the attachment to be dissolved.

"Rule absolute."

Published by the Division of Law, Macquarie University