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

Ex parte the Sheriff [1839] NSWSupC 21

Sheriff, liability of - civil procedure - summons, service of

Supreme Court of New South Wales

Dowling C.J. and Willis J., 28 March 1839

Source: Australian, 2 April 1839

SUPREME COURT -- (In Banco)

THURSDAY. -- Exparte the Sheriff. -- Mr Foster applied for an order directing the Sheriff to amend his return of the summons, in the case of Wilson v. M'Quilty, by filing an affidavit of the service, or to inform the plaintiff where the bailiff resided. It appeared from the affidavit of Mr Smith, a clerk to Messrs D. Chambers and Holden, that a summons in this case was lodged in the Sheriff's Office for service and afterwards returned, endorsed by one Philip Macdonough as having been served by leaving it with the servant of the defendant; as the rules of Court declared that a case cannot be set down for assessment without an affidavit of service of the summons where the service is not personal; deponent applied to the Under Sheriff, Mr Blake, to obtain the affidavit from Philip Macdonough, or inform him where he lived that he might send it himself, to which Mr Blake replied that he did not know where he lived, and would not trouble himself about it; the consequence of which was, that the cause could not be set down for assessment, and the plaintiff was prevented from obtaining a verdict this term.

The Attorney General, who appeared for Mr Blake, said, that he should be able to show the Court that this was a most vexatious motion, merely made for the purpose of harrassing and annoying Mr Blake, a gentleman who was noted by the whole profession for his urbanity and civility. By the rules of Court, the Sheriff was not bound to serve process more than fifty miles from Sydney, and twenty miles from the towns, where there were bailiffs. The affidavit of Mr Blake, which he held in his hand, stated that the deponent did not know where Macdonough lived as he was not a Sheriff's bailiff, and that the manner of Smith towards him was extremely insulting and annoying. The writ was served at Dapto, Illawarra, while Mr Smith asked for a frank to send the affidavit to Goulburn, entirely another part of the Colony, which was enough to make Mr Blake suspect something was wrong. The Sheriff was only bound to serve writs within a distance of twenty miles; while it was evident, from the mileage charged on the summons, that it was served as a distance of upwards of fifty-six miles; so that it would appear that the bailiff of the district had employed some one to serve the summons; and, as the bailiff of every district was well known, Messrs Chambers and Holden had as good an opportunity of asceraining [sic] who Macdonough was, and where he lived, as the Sheriff had.

Mr Foster replied, that he was not aware that it was necessary to go cap in hand to a government officer, even if he was as high in rank as the Deputy Sheriff; but, if Mr Smith really behaved improperly, Mr Blake had a very summary way of punishing him, either by complaining to Messrs Chambers and Holden, or to the Court, who would, of course, always be ready to protect their officers. If the Sheriff was not bound to serve the writ of summons, why did he do so? He would admit that he was not compelled to do so; but, having done so, he was certainly bound to make such a return as the plaintiff could act upon.

The Court said, that as there was another charge against the same officer, they would hear both before giving judgment.

In the case of Jones v Pearson, Mr Foster moved for an order directing the Sheriff to pay over to Messrs Chambers and Holden the sum of £269 2s 8d, being the amount levied under a writ of fieri facias. It appeared from the affidavit of Mr Smith, clerk to Messrs Chambers and Holden, that he applied to the Under Sheriff for the money with an order signed by Messrs C. and H., and that Mr Blake refused to pay it, saying he would only pay Messrs Chambers and Holden, although there was a general authority for the Sheriff to pay over to Mr Smith all monies that might become due to them or their suitors, under which he had repeatedly received money.

The Attorney General contended, that the Sheriff was not bound to pay money to any person but the Attorney himself; and that in order to protect the Sheriff from any possibility of risk, Mr Blake was perfectly justified in acting as he had done. The money was lying in the office and could be obtained at any time; but although both Mr Holden and Mr Chambers had been repeatedly in the Sheriff's Office they had never applied for it, which clearly shewed that the application was not made for the purpose of obtaining the money, but merely to harass Mr Blake, against whom these complaints were the only ones that had ever been made.

Mr Foster submitted, in reply, that it was clear that Mr Blake had refused to pay the money through mere pettishness. A public officer, even the highest in the land, could not refuse to do his duty, even if he was not treated with all the respect that was due to him. If a suitor in the Court, who was conducting his own case, treated their Honors with disrespect, would they for a moment refuse to do him justice? If it was a mere breach of good manners, or was an act of disrespect arising from ignorance, the Court would probably not notice it; or, if it was a wilful contempt, they might punish him for it; but they would not for a moment think of refusing to proceed with his case; and it was upon this principle that he contended Mr Blake should have acted. Mr Blake had the character, and he believed deservingly, of being a very active industrious officer, but in these instances he had suffered his private feelings to get the better of him, and had refused to do that which it was clearly his duty to do.

The Chief Justice said, that the Court was called upon to perform a most painful duty, but being a duty in which the interests of the public were concerned, it must be performed. The tendency of the first application was to impute to the Under Sheriff that he had obstructed the course of public justice; he was charged with having refused to give the address of the party who served the writ of summons, in order to enable the plaintiff to procure an affidavit of service, and set his case down for assessment and sue out a judgment. If the Sheriff was not bound to serve the writ, still if he undertook to do so, he was bound to serve it properly, and had no right to refuse to tell where the party lived who served it. If the attorney's clerk behaved improperly, Mr Blake had his remedy, and should not have allowed his impertinence, if he were guilty of any, to interfere with him in the execution of his duty. The Court would therefore make that part of the rule absolute, respecting the name of the bailiff who served the writ; and as the circumstances of the case had not been met, it must be made absolute with costs. With respect to the second application, if Mr Blake had not known the clerk, or had it been his first application for money, Mr Blake would have been justified in refusing to pay him; but when it was shewn that he had a general power to pay money to Mr Smith, which he had acted upon, he ought to have paid the money to him in this instance, and therefore, the Court ordered that the money be paid with interest from the day it was demanded, and that the rule be made absolute with costs.

Mr Justice Willis said, that the Chief Justice had expressed his opinion, and he should not have said a word upon the subject, were it not to observe that although he did not know Mr Blake, he had heard his character spoken of very highly by several parties, and he was sorry that he had allowed any feeling of irritation to get the better of him. As the Court gave judgment against him, they were obliged to give costs, but now that the matter was over, and the judgment of the Court had been obtained, he dared to say that the parties would shake hands, and the costs would not be pressed.

Published by the Division of Law, Macquarie University