[fieri facias – civil procedure]

Forbes v. Gurner

Dowling C.J., Burton and Stephen JJ, 22 January 1842

Source: Sydney Herald, 25 January 1842 [1]

            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.

Notes

[1] See Forbes v. Gurner, 1841