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

Terry v. Howell [1828] NSWSupC 81; sub nom. Terry v. Howell (No. 2) (1828) NSW Sel Cas (Dowling) 57

deed, formalities of, non est factum, Sheriff's liability

Supreme Court of New South Wales

Dowling J., 18 September 1828

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 98]

Thursday 18 Sept 1828

Coram Dowling J

Terry v Howell[1 ]

Replevin Bond non est factum[2 ]

[Mr Norton]

Jno Fiby.  I am subscribing witness to this bond I saw it executed by the Defendant 

[p. 99] [exd]  I am not under sheriff  The bond was filled at the time it was executed the seals were not attached before it was signed.  They delivered it as their act and deed the seals were attached after they signed.  I wont be positive; but I think not.  I saw them sign their names at Mr Doyles.  All were present at the same time.  Having signed it they delivered as their act and deed, and then I put the seals I wont be positive whether put to it before or after it.  He Howell put his finger on the instrument.  The three signature were attached to it before they delivered it.  Howe only delivered it as his act and deed.

rexd  The paper was upon a wafer and turned over.  The seals were generally put on before the bond come out of the Sheriffs office.  This bond was executed in the usual way in which those things are done.

[Wm Flynn exd]

The assignment of this bond was executed by the Sheriff Mr Mackaness in my presence

This is the seal of office generally made use of this was put on in the Sheriffs office and immediate after he signed Mr Mackanness signed only that at one time.  He laid his [p. 98, sic] finger on the seal and delivered it as his act and deed.

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Mr Rowe objects that there is no proof that "bond was taken according to the Statute made and provided."

Mr Fibz  Howe delivered it as his act and deed I wont be positive that Mr Howe only did that.  The bond came from the Sheriffs Office.  The other parties were all present they met for the purpose of executing the deed.  I have witnessed the execution of many bonds and this was executed in the usual manner.

Dowling J. sums up - Deed or no Deed

Verdict for the Plaintiff Damages one shilling.  Reserved the points.  I[3 ] said that upon the plea of non est factum nothing was put in issue but the execution of the bond and that the averment according to the statute was immaterial and need not be proved   2nd  That the issuing of the bond by the Sheriffs Agent was sufficient.  [p. 99]  3. The due execution of the bond was matter of evidence for the Assessors  Then alluding to the evidence was this duly executed?   the parties go for the express purpose of executing this bond   It is treated at the time by them as their act and deed, and in the absence of all proof of surprize or fraud the Assessors might treat it as a bond which had been duly executed.  It was a common printed form of which hundreds were issued and the Assessors were to look to the intent of the parties as well as their acts.

Rowe objects that action brought too soon

2nd  That the bond should be issued by under Sheriff

3rd  That no proof of sealing and delivering by all three.

Notes

[1 ] See Sydney Gazette, 20 June 1828.

[2 ] It is not my deed.

[3 ] This refers to Dowling J., the author of the notebooks.

Published by the Division of Law, Macquarie University