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

Taylor v. Mackaness (1828) NSW Sel Cas (Dowling) 432; [1828] NSWSupC 15

trespass to goods, damages, loss of use of goods, damages, remoteness of damage, Sheriff's liability, ship, title to, civil procedure, fieri facias

Supreme Court of New South Wales

Stephen J., 6 March 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 18]

[Thursday 6th March]

[Taylor v Mackaness Esq.]

Before Stephen J. and two assessors.

Dowling J. present at Stephen J. request.

This was an action of trespass, against the late Sheriff of this Colony for seizing and detaining a vessel called the Lord Rodney and thereby depriving the plaintiff of the use and benefit thereof during a long space of time.  The defendant suffered judgment to go by default.

The plaintiff proved that at the time of the seizure he had contracted in Sydney [p. 19] with certain freighters of goods and passengers to carry and convey them to Hobart Town and that in fact part of the cargo was laden and obliged to be unshipped and that the passengers went by another vessel.

The plaintiff further sought to swell the damage in two other particulars, first, in respect of a return freight which he expected to receive at Hobart Town, for which he had a verbal promise, and 2dly in respect of freight from Sydney to the Isle of France in the event of the vessels return from Hobart Town to Sydney.

Stephen J. (with the concurrence of Dowling J.) ruled that the plaintiff could not recover for the speculative or contingent damages claimed in respect of the expected freight from Hobart Town to Sydney and thence upon the voyage to the Isle of France.

The Assessors under this direction found for the Plaintiff damages £300 limiting the plaintiff's demand to the extent of injury sustained [p. 20] by reason of the plaintiff being prevented from fulfilling his contract and ensuing freight for goods and passengers from Sydney to H. Town deducting ship's expences.


Forbes C.J., Stephen and Dowling JJ, 29 March 1828

[Saturday 29th March]

Present Forbes C.J. Stephen J. and Dowling J.

Moore now moved to set aside the proceedings for irregularity and that the defendant be at liberty to come in and plead to the action, on the ground that no process had been served upon him, and that he was wholly ignorant of the proceedings.

Norton shewed cause on affidavit negating the alleged irregularity.

The Court under all the circumstances of the case ordered that the defendant have liberty to appear and defend the action on the following terms, namely, paying all costs as between attorney and client, [p. 21] taking short notice of trial for the sittings after this term giving judgment at the present term and not questioning the interests of the plaintiff in the ship Rodney or his power to sue alone.


Dowling J., 5 April 1828

[Saturday 5th April]

Present, Dowling J. and two Assessors.

The case was now tried upon the merits.  The declaration was in trespass for seizing on the 14th December 1827, a vessel called the Lord Rodney the property of plaintiff of 3000£ value being in Sydney Cove and detaining her five weeks whereby plaintiff lost the whole use profit and advantage of the vessel.  Plea, not guilty.

It appeared in evidence that the vessel had been seized by the defendant under a writ of fieri facias[1 ] to satisfy a judgment at the suit of T.D. Rowe at T. Charlton the Commander, whereby the plaintiff's agent was prevented from sending her on a voyage to Hobart Town and being partly loaded [p. 22] the goods were taken out and forwarded by another vessel to their destination.  Several passengers also engaged cargo by the Lord Rodney and their passage money was repaid.  The plaintiff claimed to be the sole owner of the vessel and a certificate of the ship's register was put in and read.  The plaintiff claimed contingent losses of freight, which the vessel would earn, provided she had arrived at Hobart Town but the Judge rejected evidence upon this head of damages.

Wardell for the defendant claimed a right to dispute the plaintiff's title to the vessel and contended that the certificate of registry was no proof of title whatever.

Norton contra. urged that the defendant was tied up by the conditions in which he was admitted to defend the action from disputing the plaintiff's title.

Dowling J. referred to the terms of the conditions imposed at the time the defendant [p. 23] was let in to defend supra. and delivered his opinion as follows:- "By the terms of the condition imposed on the defendant he was not to question the interest of the plaintiff in the ship Lord Rodney or his power to sue alone.  The spirit of this stipulation and the meaning of the Court was, that assuming the plaintiff to be able to shew that he had some legal interest in the ship the deft. was not to be at liberty to turn him round upon any technical objection to his title or to object that other persons should have been joined with the plaintiff in the action.  Acting upon this stipulation, I should have prevented the defendant from questioning the plaintiffs title had he shewn any title or interest in the vessel, but in my opinion he has shewn none.  The certificate of the ship's register clearly shews no title of interest in the plaintiff.  The objects of the registry acts are foreign from those of evidence.  Start at 1155.  A register is frequently essential to the communication of a title and the want of it is in many instances conclusive to disprove a title, but in other respects the instrument [p. 24] is a mere private document and it has no operation as evidence but that which it derives from the general principles of evidence.  Proof, for instance, of a registry of a ship in the name of one or more persons is no evidence for them to prove any interest in them, for it amounts to nothing more than their declarations Pine v Anderson [4 Taunt 652].[2 ]  In Flower v Young [3 Camp 340], the register was held to be no evidence for the deft. in an action for stores supplied for the use of the ship in order to prove a plea in abatement or the nonjoinder of codefendants alleged to be liable as part owners.  The general object of the provisions in the register acts was to restrict the commercial privileges formerly enjoyed by British owners of ship wherever built to British owners of ship built within the dominion of his Majesty.  I think that in this case, the plaintiff has not shewn that he had any title or interest in the ship; if he had, I should have excluded the deft. from questioning that title under the peculiar circumstances in [p. 25] which he is let in to defend this action.  The defendant however is not tied hand and foot by the terms imposed upon him.  The spirit of the condition imposed upon him was that if the plaintiff shewed some title or interest, the deft. was not to be permitted to question it or dispute the plf's right to sue alone.  Here the plaintiff has shewn no interest whatever.  There is no evidence of possession which prima facie would be sufficient title as against a trespasser.  The bare certificate of register unaccompanied by evidence of possession or acts of ownership is not sufficient according to the authorities referred to, and therefore I am bound to hold that he has no locus standi in curia.  For anything that appears to the contrary, Charlton the captain is the owner.  He has the sole possession of the ship and is allowed to go from place to place with it and by means of such possession to obtain a credit in this remote part of the world and the plaintiff has shewn nothing inconsistent with the apparent ownership being vested in Charlton.  It is never to be forgotten who the defendant is in this case.  He is a public [p. 26] ministerial officer bound to execute the process of the law and before he is to be made answerable for an unlawful seizure under the process of the law, the plaintiff must shew some title to the property in order to make him a trespasser.  He is in no condition to contest a title, being a stranger to all the parties.  Suppose the plaintiff were allowed to recover upon the very slight evidence he has produced and it turned out hereafter, that he had no title or interest in the ship, the defendant would be liable over to the real owners, and he could not plead in bar, the verdict recovered against him in this action.  Again, suppose the plaintiff recovered judgment in this action and the defendant could before execution, shew that the plaintiff had no title, the Equity side of this Court would stay execution.  In the absence of any proof of title, interest or possession in the plaintiff, I am bound to hold that the plaintiff cannot recover and therefore I am of opinion that he must be nonsuited.

The plaintiff was nonsuited.


[1 ] Cause to be done.  A writ authorising the sheriff to seize and sell a judgment debtor's property.

[2 ] These references are in the margin of the manuscript.

Published by the Division of Law, Macquarie University