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

Innis v Mcquoid [1833] NSWSupC 26

fieri facias, poundage - sheriff's liability - sheriff's fees

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 28 March 1833

Source: Sydney Herald, 1 April 1833

G. Innis v. Macquoid. - This was an action tried last term, before Judge Stephen and two assessors, to recover back expenses deducted by defendant out of the proceeds levied by virtue of a writ of fieri facias, when a verdict was returned for plaintiff for £12 16s. 8d., subject to the question at law whether no expense under any circumstances, could be charged by the Sheriff beyond his poundage.  If any more, then they found for the defendant.

Chief Justice. - The assessors had thought the expenses reasonable, and they would have allowed them unless a positive law stood in the way.  The point to be considered was, whether the poundage awarded by law to the Sheriff was all that could be demanded in carrying into effect the process of the Court.  Notwithstanding the case reported in 3rd Campbell, where Lord Ellenborough decided at Nisi Prius, that he could charge no more than the poundage, yet he found other Judges had decided the other way.  The statute of Elizabeth had settled the Sheriff's mere poundage, but the 43d. Geo. 2., entitled the plaintiff who levied on goods, to charge the fees and expenses over and above; in 2 Bingham, it had been so interpreted, and he was of opinion that reasonable, necessary and unavoidable expenses should be allowed.

It had been said from the bar that the Court had decided that poundage was all the Sheriff could demand, but he remembered the decision went the other way as in the case of Hughes v. Singleton, therefore not being precluded by any former decision, adversely, from deciding on the case before them, he thought the Sheriff should be allowed reasonable expenses to be paid out of the levy, independent of the poundage; reasonable expenses could be charged beyond poundage, and, according to the terms of the verdict, he was of opinion the verdict should be entered for the defendant.  The other Judges were of the same opinion.

 

Forbes C.J., Dowling and Burton JJ, 28 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 28] Assumpsit for money had & received to recover back from Deft as Sheriff of New South Wales., various sums of money levied by him ultra his fees & poundage, under an execution agt. the plf.  General issue.  At the trial before Stephen J. the assessors were of opinion that the charges [?] the Sheriff had levied ultra his poundage were reasonable, & a verdict found for the plf for £12.16.3 subject to the opinion of the Court as a question of law, whether any expenses can be allowed to be charged by the Sheriff beyond his poundage.  If the Court should be of opinion that he was entitled to more than his poundage, then the [p. 29] Assessors found for the Deft.

Norton for the deft. 

The excessive charges, which the Sheriff retained out of the money levied, consisted of market dues, tolls at turnpike gates, disbursements on [?] of keeping & taking care of the cattle at [?], on which the levy had been made & some other necessary incidental expenses connected with the execution.  No question was made as to the reasonableness of these charges.

Norton - relied upon the words of the stat. 43. G. 3. c. 44. s. 5. - as shewing that the Sheriff might retain out of the sum levied not only poundage fees, but the reasonable expenses of the execution.  It was the fault of the Deft that his outlay was incurred.

Foster. contra contended that the Sheriffs poundage was to cover [p. 30] every expense attending the execution - no matter to what the expenses might amount.  He referred to 2 Bingham. 225. Bilkco v Havelock 2 Campbell. & 2 Taunt. 174. 4 M&S.  Rawsthorn v Wilkinson.

Forbes CJ.  The assessors have determined the reasonableness of the charges.  The simple question is whether by law such expenses can be retained by the Sheriff out of the levy.-  Now it is quite clear that the statute contemplates something more that the mere poundage which had been fixed by the statute of Elizabeth.

Dowling J  same opinion referred to the cases of Campbell v Cooper. Prout v Mehan. & Stewart v Sinclair, decided by this court, in which the court recognized the [p. 31] principle that the Sheriff might retain for something more than the poundage, if the expenses of the levy were reasonable & necessary.  He noted the distinction that here the Deft was the Sheriff;- whereas in Havelock v Geddes he was plf - & there the object of the action was to recover [?] possession money under circumstances, not very creditable to the Sheriff.

Burton J. I am of same opinion.  In truth these are not the Sheriff's charges, but the plf's charges, which he was entitled to levy as being incidental to the realization of the judgement.  The Sheriff is not entitled to any thing for his own remuneration, but his poundage.  The poundage he is entitled to take for his [?] levying & the probabble [sic] [p. 32] loss of the money - suppose the Sheriff may have necessary occasion to travel 100 or 500 miles to levy, he is entitled charge someone for the expenses of the journey.  In truth the Sheriff is no more than the agt of the plf in the cause - & he is clearly entitled to retain out of its proceeds of the levy his reasonable expenses averred in the execution, beyond poundage.

Per Cur. Judgement for Deft.

Published by the Division of Law, Macquarie University