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

Forbes v. Gurner (1842) N.S.W. Sel. Cas. (Dowling) 877; [1842] NSW Sup C 2

fieri facias - civil procedure

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 30 October 1841

Source: Sydney Herald, 1 November 1841


            Before the three Judges in Banco.

            This was an argument on a demurrer to the defendant's plea in the action. Mr. Windeyer was for the plaintiff, and the Attorney General, with whom were Mr. Manning and Mr. Broadhurst, for the defendant.

            Mr. Windeyer, in proceeding to support the demurrer, shortly set forth the facts of the case, as they were presented on the face of the pleadings. From them it appeared that Forbes in the January of this year recovered a verdict against a party named Macnish, for the sum of £313 18s. and thereupon sued out a writ of fi-fa, which was presented to the defendant Gurner as chief clerk of the Court, to be signed and sealed; that after its signature, the plaintiff applied to have the writ delivered to him, but that the defendant refused to deliver it, in consequence of which the plaintiff was not able to have his execution on Macnish's goods so soon, as, but for such refusal, he would have had, and thus lost the benefit of his execution on Macnish's goods so soon, as, but for such refusal, he would have had, and thus lost the benefit of his execution altogether. It was also alleged in a second count of the declaration, that the defendant had detained the writ in question in his hands, until he had given notice to the sheriff to prefer another writ to that of the plaintiff, in which manner the plaintiff alleged he was unable to lodge his writ so soon in the sheriff's hands for execution, as, but for such detention, he might have done. The defendant, among other pleas, had pleaded that before the writ of the plaintiff was presented to the defendant for signature, another writ was presented to him for signature by one William Minithorpe, and that by virtue of such presentment, according to the practice of the Supreme Court, became entitled to priority over the plaintiff's writ, and that it was the duty of the defendant to take care that no other writ should be delivered out of the office of the Chief Clerk, until the writ presented for signature by Minithorpe had been signed, sealed, and delivered to him. That at the times at which the plaintiff applied to have his writ delivered to him, the writ presented by Minithorpe had not been signed, and that therefore the defendant had refused to deliver to the plaintiff his writ, as complained of by him. The demurrer alleged that the plea was insufficient, the practice of the office of the Chief clerk as set forth, having no warranty of law.

            Mr. Windeyer contended, in support of the demurrer, that if such a practice as set forth in the plea were allowed, it would be open to the Chief Clerk at any time, to give a preference to one writ over another, without reference to the order in which they were signed; that the plaintiff having applied at the office for his writ, it was the duty of the Chief Clerk at once to deliver it, and that if other writs had been previously delivered to the clerk for signature, the parties delivering them must take the consequences of their laches, in allowing them to remain in the Chief Clerk's hands, without applying to have them re-delivered.

            Mr. Broadhurst on the other side, contended that from the multifariousness of the Chief Clerk's duties, it was impossible he could at all times deliver out writs the moment they were signed, and that he was obliged, in order to prevent injustice, to take care that the writs should, when signed and sealed, be re-delivered to the parties entitled to them, in the order in which they had been presented to him for signature. That if, on the other hand, agreeably to Mr. Windeyer's argument, the practice were to prevail of giving out the writs whenever the attorneys or their clerks applied for them, an unseemly struggle would be constantly taking place at the office among the clerks as to which party should first obtain his writ.

            The Chief Justice intimated a desire to consider the case, and judgment would be given on a future day.

Dowling CJ, Burton and Stephen JJ,  22 January 1842

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 229


                                                               Forbes v Gurner

Case against the Deft as Chief Clerk of the Supreme Court for negligence. The first count stated, that on 20h January 1841. the plf having recovered a judgment in the Supreme Court against one Andrew Macnish for £513.18.s. & £33.0 for his costs sued out a writ of fi fa, to levy the same, and such writ being signed & sealed by the Deft it became his duty as chief clerk, there being no lawful impediment to the same, to issue out & deliver the same to Plf on request. Averment of request, but deft not regarding his duty, refused to deliver the writ whereby Plf was prevented from procuring a levy to be made on the goods of Macnish, so soon as he might otherwise & would have done & thereby lost his debt and damages. Second Count was like the first in the inducement & introducing matter and averred as a breach of duty, that the Deft detained the writ so sued out by Plf, in his hands till he, the Deft, had given notice to the Sheriff to prefer to Plf's writ, another writ of fi fa intended to be sued out at the suit of W. Wright, & W.S. Graham against the said A. Macnish, but which was still [p.230] in the hands of the Deft, and until he had - away from the office of the Court, and at the office of one Wm Minithorpe the attorney of Wright & Graham, delivered to a clerk of Minithorpe the writ so sued out at the suit of Wright & Graham, and until he had made known to Minithorpe's clerk the issuing of Plaintiffs writ, whereby Plf was not only hindered & prevented from lodging his writ in the Sheriff's office so soon as he might have done, but was also thereby postponed in his levy under the said writ until Wright & Graham's writ had been satisfied, & thereby also lost the benefit of his writ, & lost his debt & damages.

Pleas to the whole declaration. First Not Guilty. Second, Leave & licence to commit the alleged grievances. Third. Traversing the request to deliver out the Plf's writs in the declaration mentioned, Fourth.

That about two hours before the Plf's writ was presented to deft fro the purpose of being signed & sealed, & before any request to deliver the same, a certain other writ of fi fa intended to be sued out at the suit of Wright & Graham against Macnish had been presented & delivered by Minithorpe to Deft for the purpose of its being signed and sealed & issued out & delivered to Minithorpe, which said last mentioned writ "by virtue of such presentment & delivery thereupon, according to the practice of the Supreme Court office became & was entitled to priority [p.231] over any other writs of Fi Fa against Macnish which might be subsequently delivered to Deft to be signed & sealed by him, & it thereupon became his duty to take notice of & preserve such right of priority & not to allow any other writ of Fi Fa against Macnish, which might be subsequently presented & delivered to Deft to be issued & delivered to parties suing out the same, until the said writ so presented & delivered to Deft, by Minithorpe had been signed & sealed & issued & delivered by Deft to Minithorpe, or until Minithorpe had notice of such subsequent presentment & delivery to Deft, of such other writ against Macnish. And Deft further says that at the time of Plf's request, the writ presented to Deft by Minithorpe had not been signed & sealed & issued out & delivered to Minithorpe by Deft, he the Deft having been unavoidably prevented by his other duties as such Chief Clerk from signing & sealing that writ either as the time when it was presented & delivered to him for that purpose, or at any time between such presentment & delivery to Plf's request nor had Minithorpe at either of the said times when notice of the Plfs writ having been presented & delivered to Deft for the purpose aforesaid. And Deft further says - that immediately upon being requested by Plf, he with as much despatch as possible, & as soon as he was able & bound to do, according to the practice of the Supreme Court office & his duty as such Chief Clerk, in that behalf, signed & sealed Minithorpe's writ, but he Deft then refused to issue Plf's writ [p.232] until he Deft had first issued & delivered out Minithorpe's writ, or until Minithorpe had such notice as aforesaid as he Deft lawfully might refuse for the cause aforesaid  And Deft further says that after having signed & sealed Minithorpe's writ & before Minithorpe had received such notice as afo.d he deft with as much despatch as possible issued out & delivered Plf's writ & Minithorpe's writ ti them respectively in the order & according to the priority in & according to which he the Deft was bound to issue out & deliver the same according to the practice of the said office & his duty as Chief Clerk in that behalf; concluding with a unification.

Replication. Issue on the 1st & 3d pleas. Deinjuria to the second plea.

Demurrer to the 4h plea assigning for causes - 

I. That that plea, neither traverse nor confesses & avoids the matters of complaint

II. That the facts set forth in the plea constitute no legal defence to the action

III. That the supposed practice of the Supreme Court office alleged, has no warranty of law & if there be such a practice established by the Deft it is one of the very matters complained of.

IV.       That it is not averred that Minithorpe intended to lodge with the Sheriff.



22d January 1842]

Dowling CJ.

The substantial question raised by this demurrer is, whether the special matters set forth in the Defts fourth plea are in law, a sufficient justification of the Plf's cause of action. The more technical questions do not in my opinion deserve consideration, and if well founded are quite beside the true point intended to be raised, namely whether a ministerial officer of this court who from the unavoidable pressure of business in the office to which he is attached is prevented from signing a writ of execution when applied for, may lawfully give preference to such writ when he has leisure to sign it, before another writ applied for subsequently.

The gravamen of the Plf complaint is substantially the same in both counts of his declaration, namely that the Deft delayed delivering the Plf's writ until he delivered out that applied for on behalf of Messrs Wright & Graham. No distinct & independent cause of action is alleged in the giving of notice to the Sheriff, or notice to the attorneys of the other parties. These are mere collateral matters, and are at all events denied, & put in issue under the [p.234] plea of Not Guilty. The delivery of Wright & Graham's writ is admitted as well as the postponement of the Plf's writ and the question is whether these acts are justified, by what the Deft alleged to be the practice of the office. I agree that mere practice technically so called, is not pleadable, & I also agree that an officer of this court cannot establish a practice for himself without the authority of the Judges, or such as is sanctioned by law. But on the other hand I hold that an officer of this Court cannot deprive a suitor of an inchoate right to the process of law, where he has used due diligence to obtain it, but has been prevented from doing so, by unavoidable circumstances over which neither he nor the officer has control. In the present case Wright & Graham first applied for their writ, & if the officer of the Court was at leisure he was bound at once to seal & deliver it, but being over whelmed with other business in the office he is compelled to lay the writ aside until he has leisure. In the mean time the Plf's writ comes in for signing & sealing, and the Deft having in mind the priority of Wright & Graham's writ, he when at leisure signs & seals them in the [p.235] order of time in which both have been applied for. Surely the principle first come first served applies to such a case. There is no imputation of any corrupt motive in this proceeding, but it is contended that this, as matter of practice has no warranty of law. Although this is called practice, it is in fact no more than the inevitable course, in the legitimate order & arrangement of the business of a public office. The head of every department must have a discretion in the arrangement for the due despatch of the business of his office, provided it is not contrary to any known rule or law laid down for his conduct by his authority. The applicant for the first writ in this instance was entitled to have it signed & sealed forthwith, but he had no right to have all the business of other suitors laid aside for his accommodation, & therefore he was obliged to wait his turn; but was he, because he was obliged to wait, to be deprived of the benefit of his prior application & give way without any default of his to the rights of others who had applied subsequently. I think that if the Deft had under such circumstances given priority to the Plf's writ, he would have been guilty of the grossest injustice towards the other party by giving him an undue preference. I see nothing illegal or improper in the course which [p.236] has been adopted by the Deft. If any undue or improper motive could have been alleged that is another matter, but none such is alleged. It appears to me, that the Deft being unavoidably prevented by his other duties as Chief Clerk from signing & sealing the first writ presented, that was a lawful impediment to the issuing out the writ applied for by the Plf, & consequently that the demurrer to the fourth plea must be over-ruled.


Stephen J. concurred

Burton J. doubted.

The Court refused to allow the Plf to reply again to the fourth plea.

Dowling C.J., Burton and Stephen JJ, 1842

Source: Sydney Herald, 25 January 1842

            In this case their Honors delivered judgment on the demurrer, argued last term between Mr. Windeyer, for the plaintiff, and Mr. Broadhurst for the defendant. The plaintiff had brought an action to recover damages from the defendant, as Chief Clerk of the Supreme Court, for not delivering out of the office, in the plaintiff, a writ of fi fa, against one McNigh, after the same had been signed and sealed for that purpose, whereas the plaintiff alleged in his declaration, he had been deprived of an execution on McNigh's goods, and had wholly lost the benefit of his writ. There was a second count in the declaration, charging the defendant with having detained the plaintiff's writ in the office until he, the defendant, had given [???] to Messrs. Wright and Graham, (who also had a writ against the said McNigh ) of the issuing of the plaintiff's writ, and thus gave a priority to the writ of the latter, to the consequent damage of the plaintiff, as above. The defendant, among other pleas, had pleaded, that some hours before the plaintiff's writ was presented for signature, Wright and Graham's writ had been presented for the same purpose by their attorney, and in order that it should immediately after being signed and sealed, be delivered to him; that from the time when Wright and Graham's writ was thus presented, down to the time of the plaintiff's application for his writ, the defendant, from the multiplicity of his duties, had been prevented from signing and sealing Wright and Graham's writ, and that immediately upon the plaintiff applying for his writ, the defendant, with as little delay as possible, signed and sealed Wright and Graham's writ, and as it was presented to the office, for such signing and sealing, before the plaintiff's writ was presented, it was entitled to priority of delivery, and that he, the defendant, had, therefore, according to the practice of his office, detained the plaintiff's writ in the office, until he had issued out Wright and Graham's writ.

            To this plea the plaintiff had demurred, alleging that the facts it contained afforded no justification, and that the practice of the office mentioned in the plea, had no warranty of law.

            Their Honors, on Saturday, gave judgment on the demurrer. The Chief Justice said, that although mere points of practice were not generally pleadable, that on this demurrer their Honors must, on the principle of first come first served, decide in favour of the defendant. It did appear, keeping in view the number and variety of the Chief Clerk's duties, that he had disclosed such facts in his plea, as fully justified his alleged breach of duty. The Chief Clerk was bound, in as far as was practicable, to deliver out writs to attorneys, in the same order in which they had arrived in the Office, and this the Chief Clerk had endeavoured to do on the present occasion. Judgment, therefore, must be given for the defendant.

            Their Honors, Mr. Justice Burton and Mr. Justice Stephen concurred; the latter learned Judge observing, that under ordinary circumstances, it must be granted that it was the duty of the Chief Clerk, to deliver out every writ so soon as it was ready for delivery; but that in the case before them, there were some exceptional circumstances, which took it out of the general rule.

            His Honor considered that the case must not be decided upon one or two points only, but the general facts contained in the plea. What were these facts? The Chief Clerk, with many duties to discharge as the rules of the Court could sufficiently show, was applied to by A. to sign and deliver out a writ of execution. At the particular moment of this application, he is prevented by the intervention of some other duty from doing so. It might be inferred that A. therefore quitted the office; the fact indeed did not distinctly appear, but it might be safely so presumed, from the allegation of the plaintiff that the writ was eventually delivered to A. at his Attorney's office   Within two hours after B. arrives at the office with a similar writ against the same defendant; and the Chief Clerk being then sufficiently disengaged to enable him to sign and seal both writs, not to delay either party, he does at once sign and seal them accordingly. Wishing, however, to avoid depriving A. of the priority due to his writ, which the course of events would necessarily have acquired for if, he, Mr. Gurner, refuses to deliver out the writs otherwise than in the order of their presentation to his office, and this not only without any improper intention, but in compliance with what, on the other side, was admitted to be the established course and practice of the office. This, however, the plaintiff contended was illegal, although his Honor, Mr. Justice Stephen, could not see it in that light. Multifariousness of duties in any office must of course compel the adoption of such internal regulations, which are at first obviously suggested by the necessity of the case. If such arrangements were opposed to, instead of being in advancement of, justice, the case would be different; but here there was no pretence for any suspicion of this kind, and therefore the defendant must have judgment on the demurrer.

Published by the Division of Law, Macquarie University