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

Hoskin v McQuoid (1830) NSW Sel Cas (Dowling) 464; [1830] NSWSupC 69

fieri facias, priority in time, fieri facias, against land, land, liability for debts, sheriff's liability

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 18 September 1830

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 46, Archives Office of New South Wales, 2/3229[1 ]


Judgment[2 ]

Dowling J. This was an action of assumpsit for money had and received by the Deft to the Plf's use, with the other money counts.  Plea the general issue.  At the trial before Dowling J. and two assessors during the sittings in last term, the circumstances of the case proved in evidence were these:-  The Plf was a trader in Sydney, and the Deft, was Sheriff of New South Wales.  The Plf had recovered a judgment at law against one Joseph Aarons for £364.14: - and on the 26th November 1829 a writ of fieri facias was [p. 2]  sued out to levy the same & was delivered to the sheriff for execution.  Arons was possessed of a house and premises situate at Wallis Plains, upon which there was a mortgage executed by him to Mr. Alexander Brodie Spark for the sum of 500£.  On the 2.d March 1829 two writs of fieri facias had been sued out upon two judgments against Arons, one at the suit of Solomons to levy 27£.5. and the other at the suit of Spicer to levy £81.10: On the 3.d of May 1829 the Sheriff executed these writs upon Arons house & premises at Wallis Plains and endeavoured to make sale thereof subject to Mr Sparkes mortgage for 500£, but could not get any biddings beyond 400£, and thereupon he returned both writs nulla bonâ. Solomens & Spicer had caused their judgments to be entered up & regularly docketed in due time.  Hoskin's judgment was entered up on the April 1829.  Beside the writ of fie fa. sued out at the suit of Hoskins two other like writs at the suit of Pittman & Campbell respectively were lodged with the Sheriff on the same 25th November 1829, one to levy  £154..18s..3d & the other, the sum of £105.5.3.  Under Hoskins, Pittman & Campbells writs the Sheriff [p. 3] seized and sold Arons house & premises at Wallis plains.  In consequence of an extraordinary & unexpected rivalry in the biddings at the sale, the same property for which there could not be a greater bidding obtained than 400£ in the month of May preceding, was sold at the price of 1150£.  Finding that the proceeds of the sale were so large the attorney for Solomons & Spicer, who attended the sale, insisted that the executions at the suit of his clients, should be satisfied before Hoskins execution, they having priority in point of time, notwithstanding their writs had been in May preceding returned nulla bonâ, and had not been renewed.  On the other hand Hoskins attorney resisted this claim, but the sheriff having received an indemnity for Solomons & Spicer disposed of the proceeds of the sale as follows:- £581.2.10 to discharge Sparkes mortgage and interest due thereon, £154.18.3 to satisfy Pittman's execution, £105.5.3 to satisfy Campbell's; £87.10 to satisfy Spicers'; £27.5. to satisfy Solomons, & £161.19.9 in part satisfaction of Hoskins.  The present action was brought by Hoskins to recover £114,,15, being the amount of the two sums of £87.10,, & £27,,5,,- paid over by the Sheriff to Solomons & Spicer [p. 4] respectively in satisfaction of their executions sued out in the previous month of May.  Hoskins writ of execution had been returned ``Levied £169.19.9," & nulla bona as to the reside of his judgment.  Hoskins had given the sheriff a receipt for £169..19.9 ``on account", and notified to the Sheriff that he should bring an action for the £114.15 paid over the Solomons & Spicer.  At the trial three points were made by the counsel for the Deft That the property seized and sold by the Sheriff being only an equitable estate, it was not liable to an execution at law as legal assets of Arons; 2.d That Hoskins being aware how the proceeds of the sale were disposed of, & having received part of the money, & given an acknowledgment for such part he was concluded & estopped from ripping up the transaction; & third, that the previous judgments at the suit of Spicer & Solomons respectively bound the property of Arons, notwithstanding their writs had been returned nulla bona in May 1829, and had not been renewed.  With respect to the first point the Judge directed the assessors that as the sheriff had actually seized & sold the property as legal assets & had in fact paid over the money, the objection could not now avail him whatever doubt there might have been upon that point under other circumstances.  The Mortgagee had acquiesced in the sale, & his claim had been discharged, and all parties had acquiesced in this mode of disposing of Arons interest, whatever it might be, in the property.  As to the second objection, he ruled that as Hoskins had reced[3 ] part of the money expressly ``on account," & under protest, he was not estopped from maintaining an action against the Sheriff for the £114,,5 if the Sheriff was not justified in paying that money over to Solomons & Spicer; & with respect to the last objection he held that as the sheriff had returned the prior writs at the suit of Solomons and Spicer, nulla bonâ, & as those writs had not been kept alive, the Sheriff had no legal authority for retaining & paying over the proceeds of the sale in November 1829 to the prejudice of Hoskins execution under & by virtue of which he had actually levied.

On a former day in this term a motion was made for a new trial on the ground that the judgments of Solomons & Spicer entered up and docketed previously to the Judgment whereon Hoskins the present plf issued his writ of execu[p. 6] tion was a charge upon & bound the freehold property taken in execution under such writ, and consequently that Solomons & Spicer's judgments ought to have been first satisfied.

This proposition was not insisted upon at much length indeed scarcely more that stated, whether from its being thought untenable, or from the learned counsel who argued it, not having come prepared for it, we cannot venture to say; but, as I believe, this is the first time, in which this question has been raised for consideration in this Court, the Court was anxious to look a little into it, before they gave judgment on the motion for a new trial.

There was no distinct proof at the trial, as to the nature of Arons interest in the property in question, but assuming that it was freehold, the question was now raised must I apprehend be determined with reference to the light in which freehold or real property  is regarded by law in this Colony as to its liability to the [p. 7] satisfaction & discharge of debts.

By statute 54. G. 4. c.15[4 ] ``An act for the more easy recovery of debts in his Majesty's Colony of New South Wales," real estates are made personal estates to all intents & purposes for the satisfaction all just debts.  By the 4th section of that statute it is enacted that ``the houses, lands, and other hereditaments & real estates, situate or being within the said Colony of New South Wales or its dependencies belonging t o any person indebted, shall be liable to & chargeable with al just debts, duties & demands of what nature or kind soever, owing by any such persons to H.M. or any of his subjects, & shall & may  be assets for the satisfaction thereof, in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other speciality, & shall be subject to the like remedies, proceedings & process, in any Court of Law or Equity  in the said Colony of New South Wales or its dependencies, for seizing, extending, selling or disposing of any such houses, lands, & other hereditaments & real estates, towards the satisfaction of such debts, duties & demands, and in like manner as personal estates in the said Colony are seized, extended, sold [p. 8] or disposed of for the satisfaction of debts."  If then the effect of this statute be to place real estates precisely on the same footing with personal estates for the satisfaction of debts, it seems to me that the question whether this property was bound by Solomons & Spicers judgments, cannot arise, & that we must regard this as the ordinary case of a judgment & execution against personal goods & chattels strictly so called, in which case it is quite clear that such property would not be bound unless execution be execution.  Admitting that execution actually executed would bind this as personal property, then remains the question whether Aarons at the time the executions at the suit of Solomons & Spicer were taken out, had in fact any property which could be bound.  It was proved in evidence that the Sheriff levied under the writs of fi. fa. at their suit in the month of May 1829 - that he used ordinary diligence to get the highest price for it he could, but that he could obtain no bidding beyond 400£. which was not sufficient to discharge Sparke's prior incumbrance of 500£; & thereupon he returned nulla bona.  The truth of that return was not disputed by Solomons or Spicer - they acquiesced in it, and allowed [p. 9 ] their writs to expire.  Indeed I do not see how the Sheriff could well make any other return.  The value of property for this purpose is what it will fetch, & if the Sheriff could not obtain a price beyond rhe mortgage incumbrance, then it appears to me that he was well warranted in returning the nulla bonâ.  Then does the accidental circumstance of this same property (afterwards taken in execution at the suit of Campbell, Pittman & Hoskins), having realized a very large amount, make any difference?  I apprehend it does not.  The increased amount was an accidental contingency over which the Sheriff had no control, & as it respected Solomons & Spicers execution must be regarded in the light of other & different effects acquired by Arons subsequent to their judgments, & consequently could not be bound by their executions.  If this same property could not in May produce even enough to satisfy Sparke's mortgage, then it is true that Arons had not at that time any goods & chattels whereof to levy & make sale in discharge of their judgments, & they were bound by the Sheriff's return.  The writs at their suit had then expired [p. 10] & the Sheriff could not be justified in retaking the property for their benefit without an alias writ.  They had omitted to renew or keep alive their writs, & their laches ought not in my opinion to prejudice Hoskins who is with them an equally meritorious creditor.

In the above case,

Forbes C J delivered his opinion first in point of order.  He was of opinion that there ought not to be a new trial granted.  If lands were to be regarded as goods by operation of the Statute 54.G. 3 then there was an end of the question.  1 T. Pr. 731.  Rybut v Peckham.  He entertained doubts however upon the point, but in this case as justice had been done, he was not inclined to disturb the verdict.  He thought there ought to be a declaratory law upon the subject to remove the doubt, whether judgments did not bind land notwithstanding the 54 G. 3

Stephen J. thought the verdict right.

Rule refused.



[1 ] For a record of the trial, see Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 324; and Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 39, Archives Office of New South Wales, 2/3222.  The Select Cases commenced with the following: "Where the Sheriff returned nullâ bonâ to a writ of fi fa against A who had mortgaged property but not more than of sufficient value than to cover the amount of the mortgage and at a subsequent period another creditor B. took out Execution against the same property which realized surplus issues to cover his execution and [p. 325] the mortgage and the Sheriff instead of paying over the money under that execution, paid it to the prior execution creditors to whose writ he had returned nulla bonâ.  Held that he was liable in money had and received to the subsequent execution creditor."  The Proceedings included the following Precis at p. 41: "In June 1829, writs of fi. fa. ats of Spicer & Solomons issued against the effects of Aarons, and were returned nulla bonâ, the deft having property upon which there was a mortgage, & no bidding could be obtained beyond the amount of the mortgage money. -  In Nov. same year Hoskins took out execution, & the sheriff seized the same property & in consequence of a rivalry in bidding the estate brought a large surplus beyond the mortgage money & the sheriff instead of satisfying Hoskin's execution, paid the money to Spicer and Solomons on their writs which had been previously returned nulla bonâ & had not been renewed.  Held that the sheriff was liable for money had & received to Hoskins use."

The sheriff was also a party in Lord  v. McQuoid, Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 317 (1830), which Dowling J. summarised as follows: "Where the Sheriff nominated the Assessors to try a cause in which he was himself a party Held sufficient for a new trial."

[2 ] Marginal note in manuscript: " See Ante vol. 39 p. 41."

[3 ] received

[4 ] This is incorrect.  The Act was passed in 54 Geo. 3, as the judgment of Forbes C.J. below shows.  George 4 was not on the throne as long as his father, George 3.

Published by the Division of Law, Macquarie University