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

Roche v Macquoid [1832] NSWSupC 75

fieri facias - Sheriff, liability of

Supreme Court of New South Wales

Forbes C.J., 10 October 1832

Source: Sydney Gazette, 13 October 1832[ 1]

Roche v. Macquoid, Esq.

This was an action of trespass on the case, to recover damages from the defendant, the Sheriff of the Colony, for a false return to a writ of fieri facias.

Mr. M`Dowell stated the case, and called the following witnesses:-

Mr. William Wright, an attorney of the Supreme Court, said, I produce an execution at the suit of Roche v Bolton and others, dated 26th of March 1832, returnable the 16th day of April, in the same year - debt and costs £36 6s. 7d. the return, ``Levied £9".

Mr. Gurner, chief clerk of the Supreme Court, produced the judgment in the case of Roche v Bolton, signed on the 16th of March, in the present year; execution issued the same day, returnable on the 16th April, endorsed to levy £36 6s. 7d.

Cross-examined by Mr Norton - The execution has not been returned.

Re-examined - It is marked on the back, ``Levied £9, Thomas Macquoid, Esq. Sheriff; by procuration, Cornelius Prout, Under Sheriff;" it has not been returned to the office of the Supreme Court.

Francis Johnson - I was present at the sale by the Sheriff, of the farm of Bolton and Haggarty, opposite Polack's tavern, in George-street; it sold for £50.; the plaintiff in this action, who was also the plaintiff in that, was the purchaser.

Cross-examined - I do not know whether the biddings went on, as I went away; I do not know what the conditions of the sale were; I did not hear the plaintiff asked for the deposit money by the Sheriff. 

This was the plaintiff's case.

Mr. Norton submitted that the defendant was entitled to a non-suit, as there was no evidence to support the allegation, that the Sheriff had levied on the goods can chattels of Bolton and Haggerty, to satisfy the execution in that case.  It was also alleged, that a return had been made to this Court, whereas the evidence of Mr. Gurner went to shew that, in fact, there had been no such return.  The Sheriff might have been ruled to make a return, but he was not to be held responsible for a piece of paper, which by some means or other, had found its way into the hands of an attorney.

Mr. M'Dowell replied, that the first objection was one arising out of the evidence, on which the assessors were to decide.  With respect to the second objection, he submitted that he had proved sufficient, by showing that the farm in question was sold to the plaintiff, for £50; it was not for him to show under what circumstances the second sale took place.

The Court said, that the plaintiff ought to be non-suited.  The allegations in the declaration, which were set out with a great deal of precision, had not at all been supported - independently of which, the evidence respecting the sale of this particular farm to the plaintiff, was extremely loose.

Plaintiff nonsuited.

 

Notes

[1 ] See also, Sydney Herald, 15 October 1832; and Australian, 19 October 1832; and seeHarvey v. MacquoidSydney Gazette, 13 October 1832.  For other cases concerning the sheriff in 1832, see Sydney Herald, 26 March, 2 April, 18 June, 11 October 1832; Australian, 30 March, 6 April 1832; and see Rapsey v. Singleton, 1832.  In November 1832, Hannibal Macarthur suggested in the Legislative Council that the sheriff should receive a large raise in salary because of the frequent actions against him: Australian, 16 November 1832.

Published by the Division of Law, Macquarie University