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

Cavenagh v Moran [1833] NSWSupC 71

sheriff's fees - fee system of administration

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 6 July 1833

Source: Sydney Gazette, 9 July 1833[1 ]

Cavenagh v. Moran. - In this case Mr. Keith applied to the court to take under its consideration the enormous charges made by the Sheriff, and to order that a reduction be made; the learned gentleman commented at great length on the ruinous results of these exhorbitant charges, which loudly called for a check. The property of the defendant had been levied on, and sold to the amount of £68 12s., £56 of which were for expenses; one of the principal items was possession money, from the 5th July to the 6th November, amounting to £26 8r., or 4s. a day ; he contended that this was an illegal charge.  The Sheriff had given 12s. an acre for reaping wheat, while several of the defendant's men were on the farm unemployed, but had not been applied to for this service; and 34 acres sold for £21 2s.; 76 sheep had also been seized belonging to the defendant, which were in the care of a Mr. Reid, the Sheriff paying the demand made upon them to the amount of £10; all these acts Mr. Keith contended were illegal, and he felt would not be sanctioned by the court; he contended that the Sheriff had no right to reap the wheat, paying an enormous sum for the same, which the defendant's own men were on the spot unemployed; also, that he had no right whatever to pay off the lien of Mr. Reid without having consulted the defendant on the subject.  The Court observed, that as to the possession-money, the defendant had consented to his property being put under the care of the Sheriff, and the rate of charges appeared to be in accordance with general usage.  It was true, the Act of Parliament on that head assigned the payment of 2s. 6d. per diem, but takes under consideration every matter connected with the case; it was probably pretty near equal to 4s of the present day in this country; besides the latter had been established by general usage.  Mr. Keith thought the Court would make some little difference between a suit which occupied only a few days in its execution and one of several months.  The court did not feel itself competent to make any alteration.  The Sheriff had undoubtedly a right to reap the wheat in question; it became necessary at a certain period to reap the wheat with all possible despatch, as the ripening and shedding occurred frequently within a week, in which case the same would unquestionably be quite lost to all parties.  The Sheriff appeared to have used ordinary prudence on the occasion.  The court were also of opinion that the Sheriff, in discharging the lien on the sheep, had not exceeded his authority in putting himself in possession of property known to belong to the defendant.

 

Notes

[1 ] Sheriff McQuoid addressed a memorial to the Secretary of State for the Colonies on 31 July 1833, seeking a fixed schedule of sheriff's fees, and relief from his obligation to serve certain process except on indemnity.  Chief Justice Forbes thought that the schedule should be based on that in England.  See Forbes Papers, Mitchell Library, A 1267-12, (reel CY 773) pp 1270-1272; and see Bourke to Stanley, 23 October 1833, Historical Records of Australia, Series 1, Vol. 17, 254.

Published by the Division of Law, Macquarie University