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

Klensendorlffe v Macquoid [1833] NSWSupC 57

sheriff's liability - sheriff's officers - warrant of attorney - fieri facias, false return - new trial

Supreme Court of New South Wales

Forbes C.J., 8 April 1833

Source: Sydney Gazette, 11 April 1833[1 ]

This was an action brought by the plaintiff against defendant, who is High Sheriff of the colony, for making a false return to a writ issued, on judgment being entered upon a warrant of attorney, against Thomas Henry Hart, at the suit of Messrs. Hughes and Hosking, for the sum of £841 18s. but previous to the day of sale announced by the Sheriff's advertisement, arrangements had been made to the satisfaction of the former plaintiffs, for the payment of £667, and in order that Hart might carry on his business unimpeded, security for the balance was taken on the horse Clydesale, said to be worth at that time between 3 and £400.  Mr. Hart's groom being appointed special Bailiff in charge of the said horse.  The levy was then withdrawn.  Subsequently to this period, a report was in circulation that Hart was involved in a transaction which threatened his liberty, on which intimation the plaintiff in the present action conceived it prudent to lose no time in securing the amount of his claim, and he immediately entered up judgment on his warrant of attorney, and the Sheriff levied on the effects of Hart accordingly.  The amount specified in the warrant of attorney was £535  15s. 11d. and the Sheriff's return was £319 2s. 6d., exclusive of Sheriff's fees for poundage, exhibiting a deficiency of £250; plaintiff conceived there was sufficient property to satisfy the writ.  The horse Clydesdale had died while travelling the country, about the period of the levy of the present plaintiff, and Messrs. Hughes and Hosking not considering this circumstance as amounting to a final withdrawal of the original levy, applied to the Sheriff for the execution to be put in force, which was done according, and the proceeds divided between Mr. Klensendorlffe (the present plaintiff), and Messrs. Hughes and Hosking, for the balance remaining due; the Sheriff taking an indemnity for any consequences that might result therefrom.  The discovery by the plaintiff of this transaction was the cause of the present action, and he now sought redress at the hands of the jury.  Mr. Prout who was under the Sheriff at that time was subpoened to produce all the documents connected with the above transactions, the production of which would set the plaintiff's case in a most favourable light, but that gentleman was instructed by the defendant's counsel, that he had no authority to produce them, being no longer in his official capacity, and the wording of the document which called upon him so to do, was so far objectionable as to render it worthless, under which circumstances Mr. Prout had lodged the aforesaid documents with the Sheriff.  This point was referred to His Honor the Judge, who stated his opinion, that the peculiar wording of the process certainly affected its validity, but this difficulty might be got over, by a motion for an order to the Sheriff to produce the documents in the case.  The judgment roll was proved by Mr. Gurner.  It was attempted to elicit from Mr. Prout such evidence as might supercede the difficulties with regard to the papers in question, but as it was a matter of pounds, shillings, and pence, the attempt proved abortive, being too great a tax on the memory.  Evidence was all adduced as to the value of the horse.

The Counsel for the defendant endeavoured to shew that the plaintiff's position in the case was one of fraud and collusion with Hart, to deprive his creditors of any chance to recover their just demands, and they had but too well succeeded already; he relied with the greatest confidence on the intelligence and discernment of the jury, in returning such a verdict as would rescue his client from the fangs of the plaintiff, with whose experience and tact in such matters many of them were well acquainted.  It was not proved to the Court that ever one farthing's consideration passed from the plaintiff's to the hands of Hart, for the warrant of attorney which was made the basis of the present action, not could it be proved on the contrary, he could adduce ample evidence of the extraordinary intimacy which existed between Hart and the plaintiff, and he could not but regret that the superior maneouvring of the parties immediately concerned in this refinement upon roguery, had prevented his carrying these facts upon their own testimony.  He had anticipated the pleasure of offering them the evidence of a lady (Mrs. Hart) which would have satisfied the Court as to the nature and bearings of the plaintiff's position in this case; but the plaintiff was no good a judge to withhold his interference from justice, and under his auspices the lady had obtained a certificate from her physician, which rendered her appearance unnecessary and even dangerous to her constitution; so far was the true principle of the case over-reached, but the proper inferencies might be drawn.

The learned Counsel for the plaintiff, in addressing the jury observed, that it was evident that his learned friend on the other side, had felt the necessity of resorting to inflammatory assertion in the absence of more substantial argument, which he felt sensible would be estimated by them as it ought to be.  The case assumed a complexion which was not likely to be affected by such a colouring, and he felt happy that it was in his power to meet the assertion of his learned friend with ample proof.  Could any thing be more absurd than to charge a man with fraudulent designs and actions, merely because he happened to be capable of forming a friendship, and with a man who has the misfortune to fall into embarrassments?  He had been seen with the unfortunate man Hart, even up to his confinement in the watch-house, which had been advanced as a proof of their fraudulent connexion!  Mr. Terry had also seen Hart; as well it might be said that his visit was of a similar nature, but the fact was Mr. Terry was carried there by a desire to acquire information as to his pucuniary [sic] transactions, and so it was his client.

The evidence of Mr. Allen, who drew up the warrant of attorney between the plaintiff and Hart, went to shew that the same was a bona-fide transaction, that bills which had been given by the plaintiff on behalf of Hart, to the amount of £300 had since, to his certain knowledge, been honored by the plaintiff.  His honor briefly summed up and left the case with the jury, who without retiring, returned a verdict for the plaintiff.

 

In Banco, 25 June 1833

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

[p. 107] This was an action for a false return to a writ of fi. fa.  At the trial before Forbes C.J the plf had a verdict with leave to move for a new trial, on two points.  [p. 108] 1st. The admission of documentary evidence, under an alleged insufficient notice to produce & 2.d that the declon was ill for not setting forth the course of action in which the fi. fa. had issued. 

It appeared that the late under sheriff had received a subpoena duces tecum to produce at the trial "all papers, books, documents, & writings in any manner relating to this cause".  Before the trial the under sheriff had had access to the original documents in the sheriff's office & made copies of them, & then returned the originals to the sheriff.  At the trial he produced the copies, & the sheriff himself had brot. into court the originals which lay on the table in the face of the court.  It was objected that the late under sheriff could not refer to the [p. 109] copies alone, which was conceded.  The plf then called upon the sheriff for an original document then in court.  Whereupon the plf contended that under the notice to produce, the original could not be produced; it ought to have been specifically mentioned in the notice.

The judge, however, thought that as the document was actually in court, & pointed to by the witness, that it ought to be produced even without notice.  In the absence of the document he was inclined to think the notice insufficient.  As with the other objection he thought the declaration sufficient in averring as a substantive [p. 110] fact that the plf had recovered a judgement, without going on to shew the cause of action in which such judgement was recovered. 

Wentworth now moved for a new trial, & both points were mooted.

Foster contra was stopped by the Court.

Per Curium.  We are clearly of opinion that however defective the notice to produce may be the fact that the document in question was actually in Court at the trial, cures all objection & the Deft was bound to produced it, no matter how it got there.  Thus the objection is quite idle.  It was not necessary to prove, & therefore not necessary to aver the cause of action supporting the judgement.

See Ryan v Moody 341. Tidd 803. 4 Esp. 256.  See Rowe v Woodford 4 Burrows 2488. -

Rule Refused.

 

Notes

[1 ] See also Sydney Herald, 11 April 1833.

It appears that members of the legal profession could not be employed by the sheriff and thus have access to the sheriff's papers.  See In re Chambers, Sydney Herald, 24 June 1833; Sydney Gazette, 25 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 105.

[2 ] The Australian, 1 July 1833, reported this case as follows: ``Klensendorlffe v. Macquoid. - Mr. Wentworth for defendant, moved for a new trial on the ground that secondary evidence of certain papers had been admitted upon proof of a notice to produce "all papers, books, documents, and letters, &c. which in any wise relate to the matter in issue," - which notice was too general and cited R. & M. reports, 341.  Mr. Foster urged in reply that there were circumstances in this case which rendered the authority of the case cited inapplicable, - and the Court decided that inasmuch as the papers were at the time of the trial in the view of the Court, and had previously been in Mr. Prout's possession, who had given them up to the Sheriff after he had been subpoened to produce them, there was no ground to disturb the verdict.  The notice given however, was by itself good for nothing."

Published by the Division of Law, Macquarie University