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

Rapsey v. Riley [1834] NSWSupC 74

equity, those who seek must give - usury - warrant of attorney

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 14 June 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98

[p. 75] This was a rule calling on the Plt to shew cause who the levy indorsed on the writ if sued in this cause should not be reduced from £716: 5:11 to the sum of £525: 3:3.  It appeared from the affidavits that in 1830 the deft being indebted to the Plf. in the sum of £512: 10:1 for goods sold & delivered he gave the Plf a warrant of attorney, -- with a defiance for paying the same ``with interest from the 4th March 1830 at 12 per cent per annum until finally settled and paid."  Judgment was entered up on this warrant of attorney on the 13th April 1830 for 530£ calculating interest to that time.  The execution was suspended by order of the Plfs attorney until 8th May 1833, when a ca. sa. was taken in it for £714: 11:5, but returned non est in venters.  An alias writ issued on 11th July 1833 for £716.5.11, including interest up to that [p. 76] time, in which the deft was taken & has remained in execution ever since.  The motion to reduce the levy was founded on two points. 

First, that agreeably to the decisions of this Court, they have never allowed more than 8 per cent in calculating the amount of damage for the detention of the debt. & 2nd that the warrant of attorney having merged in the judgment entered up thereon, interest can only be calculated on the warrant of attorney until the time judgment is signed & put afterwards it was not sworn that the deft had tendered, or was ready & willing to pay what should by law appear to be due to the deft.

Keith & F. Stephen were heard.  The former agd the rule & the latter in support of it.

Without giving judgment on the points made in argument, [p. 77] the Court was inclined to hold that by the express terms of the defeazance on the warrant of attorney, the Deft might have judgment for the interest until the debt was finally settled & paid; & as to the rate of interest, that being matter of express contract, without fraud, circumvention on unfair dealing with Deft, it was binding on the Deft, notwithstanding the rate of interest allowed by the Court on Bills of Exchange & in which no express rate of interest is stipulated for.  On this point Burton J. doubted.  But, on the defect of the Defts affidavit, in not shewing a readiness & willingness to pay what would be found to be due.

The Court was clear, that supposing the deft had any equitable right to have the levy reduced, still he must do equity himself, either by tendering, or undertaking payment for what is really due, in a case in which the original debt is not [p. 78] denied, nor any suggestion of fraud or improper advantage taken of him in the transaction.  This was a condition precedent he must do Equity, before he seeks Equity agt another.

Rule Discharged.

Published by the Division of Law, Macquarie University