Skip to Content

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

Rhode v McQuoid [1833] NSWSupC 97

trespass to land - fieri facias, land - sheriff's liability

Supreme Court of New South Wales

Burton J., 23 October 1833

Source: Sydney Herald, 28 October 1833[ 1]

Wednesday. - Before Judge Burton, and a Common Jury.

Rhode v. McQuoid. - This was an action for trespass.  A sale took place under execution of the Sheriff on two farms, then in possession of plaintiff, viz: - Fig Tree, and Duck-reach Farms; which execution cleared the premises of all moveables; and plaintiff sought recompense in this Court for injury sustained by him.  The execution was put in by Mr. Samuel Terry, and others, against Moran, to satisfy the amount of a Bill of Exchange, to which Mr. Keith was a party.  Doctor Moran was the previous possessor of the said farms, and made assignment to plaintiff some time prior to the  putting in force of this execution; which assignment was undisputed.

Mr. Keith commenced the defence, and endeavoured to prove that the property sold under the Sheriff's warrant in this case, was the property of Moran, and not of the plaintiff.

His Honor in summing up, took great pains in detailing the evidence to the Jury; marking audibly and distinctly, every item of sale, and distinguishing between dates and circumstances for their consideration.  The Jury, after retiring for some time, returned into Court, and gave a verdict for plaintiff, damages £60.

 

Forbes C.J., Dowling and Burton JJ, 5 November 1833

Source: Sydney Gazette, 7 November 1833

 

In Banco.

Rhode v. Macquoid.

This was an action of trespass, under an execution of the Sheriff tried before His Honor Justice Burton, the 21st of last month, in which case, a verdict was returned for the plaintiff with £60 damages.

Mr. Keith for the defendant, moved for a new trial on the ground that it was a case that ought not to have been tried before a common Jury, without a motion having been made to the Court expressly for that purpose, which it appears in this instance was not done.  Mr. Keith also read a letter received by him, to shew the cattle which were seized by the Sheriff in the name of Rhode, were actually at the time the property of Dr. Moran.

Mr. Wentworth for the plaintiff opposed the application, contending that he letter received by Mr. Keith might be true, or it might be false, as nothing was sworn to respecting it; and also, that an unnecessary sacrifice was made upon the goods at the time of sale, which he contended would alone set aside the ground for a new trial.

The Court suggested that instead of going to a new trial, they had better endeavour to compromise the matter, and asked Mr. Wentworth here said he would take thirty pounds, which was immediately assented to by Mr. Keith.

 

Notes

[1 ] See also Australian, 25 October 1833.

Published by the Division of Law, Macquarie University