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

Mackenzie v. Cummings [1847] NSWSupC 41

enforcement of judgments

Supreme Court of New South Wales

Stephen C.J., April 1847

Source: Sydney Morning Herald, 13 April 1847, in Supreme Court Collection, Vol. 1, p. 106 [1]

The Chief Justice pronounced judgment in this case as follows :-

On Friday last, we decided the main points in contest in this case; and one question only, being one of fact, was left for inquiry and consideration. We held, that - whatever may have been a plaintiff's object or motive, in omitting to obtain a Judge's leave, or file a verrified account, as required in certain cases, before issuing an execution, by the Rule in pages 92 and 142 of the Practice - he was not bound to do either, under that Rule, in any case where a scire facias was not then necessary in England. But, since an execution issued within a year after the judgment, (although the writ now in question, being an alias, was above two years after that judgment,) a scire facias was unnecessary; and therefore neither a Judge's leave, nor a verified account, was necessary. We held, secondly, as to the Standing Rule 79, that the direction to the Sheriff in this case, at the foot of the writ, "Levy £2900, besides, &c." was a sufficient compliance with that Rule; inasmuch as it must be taken, that such was the amount alleged and claimed by the plaintiff as bona fide due to him. And, if less could be shown to be in fact due, the defendant's course was not an application to set aside the writ, but for restitution; or, where the writ, was unexecuted, to reduce the amount of levy. We held, thirdly, that in a case of this kind, where a plea was pleaded, and a verdict given thereon, we could not receive evidence that the money recovered was not then due; but that the defendant, whatever might be his remedy in another jurisdiction, if any, was on a summary application like this bound by the existing judgment. The defendant's application, therefore, to set aside the writ of execution, on the ground of payment, or otherwise, failed. But we were of opinion, that if the affidavits showed any payments or payment since that judgment, and the allegations on that head were uncontradicted by the plaintiff, we could so far grant the defendant relief - by reducing the levy pro tanto.

We reserved our decision on this matter of fact, until we should have looked carefully into the affidavits on both sides. We have now perused them; and the following is the result. It appears the judgment was on two promissory notes, out of four which had passed between the parties; and that in January 1844, in an affidavit then made by him, the plaintiff admitted £2688 only to be at that time due, on all the notes. That admission, however, was before the date of the judgment. It is then sworn, that "some time since" the plaintiff admitted himself to have received, on the same account, after the making of that affidavit, £1500 more. This allegation, unfortunately, (if more was intended than is here expressed,) is too loose and uncertain for us to act upon. It should have been sworn distinctly, that the money was received, or at least that the admission was made, after the judgment. But, the ' some time since ' may have been a month only, or a week, after the affidavit; or, the admission may have been much more recent, and yet the receipt of the money have been prior to the judgment - by which, in respect of all matters up to that time, (as we have already said,) the defendant is now absolutely concluded. The only evidence, unequivocally pointing to a date posterior to the judgment, is that referring to the plaintiff'' admission, in his answer to the bill in Equity. In that, however, the date of which is September 1845, he is represented to have acknowledged, that in the month of February preceding, only £2060 19s. 8d. on all the notes was due to him. On the principle, that we must assume £2900 to have been due, when the judgment was obtained, we think that we may conclude the difference before those sums, (the plaintiff showing nothing to the contrary, in his affidavit in opposition to this application) to have been a subsequent reduction. We therefore direct, that the levy be restricted to the said sum of £2060 19s. 8d. accordingly. If interest, since February, 1845, be demandable, it must be by some arrangement of which we have no notice. The promissory notes would bear interest; but no interest is in this case receivable, by simple execution on the judgment. No question of that kind, therefore, can interfere with the direction.

The only remaining point is, the costs. Our first impression was, that the defendant should in strictness pay them; although succeeding partially in his object - because the main grounds of his application have failed, and the only thing which he asked, (namely, that the writ may be set aside,) and which the plaintiff comes here to oppose, has been refused. But, on fuller reflection, we think that the order in this case ought to be made, without costs on either side. The defendant, who has so far failed, cannot justly obtain them. On the other hand, we conceive that the plaintiff, on the whole, has no greater claim to them than his adversary; - because, in availing himself of his strict rights, and thereby avoiding (after an interval of two years and eight months) any oath, as to the continuance of his debt, he ought to be held strictly bound to avoid any excessive or unrighteous demand, which that oath doubtless would have prevented. Having thus put the law in motion to the defendant's disadvantage, he cannot reasonably complain, should he be held responsible for the consequences. But it turns out, (taking the facts to be as we find them on the affidavits,) that he has availed himself of the process of this Court, to obtain some nine hundred pounds more than is due to him; and the defendant, though he has failed in showing that the writ itself was wrong, or that nothing was due under it, has established the fact of that excess, and obtained our order for its correction. It would scarcely be fitting, we think, under such circumstances, to give the plaintiff his costs; and, as we cannot give costs to the defendant, for the reasons already assigned, we withhold them alike from both.


[1] See also Cummings v. MacKenzie (No. 1), 1847; Cummings v. MacKenzie (No. 2), 1847; Cummings v. MacKenzie, 1848.

Published by the Division of Law, Macquarie University