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

Hughes v Singleton [1832] NSWSupC 71

quasi-contract - imprisonment for debt, bail - bail bond - sheriff's officers

Supreme Court of New South Wales

Dowling J., 27 September 1832

Source: Sydney Herald, 1 October 1832[1 ]

 

Hughes and another v. Singleton. - This was an action of assumpsit for money paid on account of defendant, amounting to £61 18s. 8d., under the following circumstances: - Defendant had been arrested by Mr. Weller, on two promissory notes, one for £29, and the other for £15; plaintiffs, at defendant's request, signed a bail bond, defendant however never put in bail above, and an assignment of the bail bond had been taken, and plaintiffs were obliged to pay the amount now sued for.

Mr. Keith, in defence, observed, that from defendant's inability to produce witnesses, he had one point, and only one, in answer to this action, that the assignment of the bond to Weller had not been made by the Sheriff of the Colony, to whom, or his assigns, the bond was made payable; there was no evidence that the individual who assigned it, which was the Under Sheriff, had any power so to do on behalf of the Sheriff; there was no such person as the Under Sheriff.

Mr. Foster. - There is the case of Saunderson v. Baker, where it was held that the acts of the Under Sheriff were those of the Sheriff himself.

Judge Dowling. - It has been admitted that Mr. Rogers witnessed the paper in question, in the name of Cornelious Prout, Under Sheriff, by procuration of T. Macquoid, Sheriff.  The defendant admitted that it had been duly executed.

Mr. Keith. - Only as far as it goes.

Judge Dowling. - You admit it to be a genuine document.

Mr. Keith. - I only admit that Mr. Rogers was present, and saw it signed, as it purports to be.

Mr. Foster. - I have cases to show, your Honor, where the Under Sheriff signed for the Sheriff, and even the Sheriff's Clerk.

Judge Dowling. - You had better have Mr. Rogers examined.

Mr. Rogers proved the execution of the assignment, and that Mr. Prout acted as Under Sheriff.

Judge Dowling. - I hold in point of law that any act done by Mr. Prout under authority, bound his principal.

Mr. Keith. - I have no further defence.

Judge Dowling observed to the Assessors that they might consider the present cause totally undefended.  Verdict for plaintiffs, £61 18s. 8d.

Messrs. Foster and Unwin for plaintiffs; Mr. Keith for defendant.

 

 

Forbes C.J., Stephen and Dowling JJ, 13 October 1832

Source: Sydney Herald, 15 October 1832[2 ]

 

Hughes and another v. Singleton.  This was an action to recover a sum of money paid at defendant's special instance and request.  It appeared that defendant was arrested at the suit of Weller, plaintiff put in bail, but defendant not putting in bail above, the bail bond was assigned to Weller,  and plaintiffs being condemned to pay £66 18s. 8d.

Mr. Keith now moved for a nonsuit, on the ground that the assignment of the bond was not by the Sheriff, or any person authorised by him, it was therefore not valid, Cornelius Prout, who had assigned it, not being duly authorised; also that the assignment did not bear the seal of office of the Sheriff.

Mr. Foster in reply contended that the Under Sheriff had a general authority in the name of his principal, and that it was binding upon him.  The Court saw no ground to disturb the verdict.

 

Notes

[1 ] See also Australian, 5 October 1832. The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 75, Archives Office of New South Wales, 2/3258, pinned to page 49.  Dowling wrote that "The only point in the case was as to whether there was due proof of the assignment of the bail bond to Weller.  The assignment purported to be in the name of the Sheriff thus 'For Thos. Macquoid the Sheriff, Cornelius Prout Undersheriff.'  -  Mr Prout was not called as a witness, but Mr. G.J. Rogers proved that he saw Mr Prout, who acts as under Sheriff, execute the assignment in the manner proved.  It was objected that there should be some evidence to shew that Mr Prout had authority to execute the assignment of the Bail Bond by procuration. 

"I thought that whatever effect this objection ought to receive in an action on the bail bond, to which the deft himself was a party, he could not not [sic] now gainsay the due assignment after his bail were condemned in the Bond, which had been executed by them for his benefit."

[2 ] See also Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261, p. 210.

 

Published by the Division of Law, Macquarie University