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

Wilson v Macquoid [1833] NSWSupC 52

sheriff's liability - replevin - bond, bondsman hanged - distress for rent

Supreme Court of New South Wales

Burton J., 3 April 1833

Source: Sydney Herald, 8 April 1833[1 ]

Wednesday. -  Before Judge Burton, and the following Common Jury: - Robert Cooper, Foreman; John Clark, John Balsover, Samuel Blackburn, Jonas Bradley, Christopher Crane, Charles Burn, Morris Castles, Samuel Bowler, and Andrew Badgery.

Wilson v. Macquoid. - This was an action on the case to recover damages from the defendant for neglect of duty, as Sheriff, in taking insufficient pledges to a replevin bond.  The defendant pleaded the general issue.

The following is an outline of the plaintiff's case: - One Nowlan rented a farm of plaintiff at Richmond, on which rent, to the amount of £56 16s. 10½d. was due in January, 1831; plaintiff distrained, and just before the sale was about taking place, Nowlan replevied, the bond taken by the Sheriff being signed by two men named Madden and Carberry; on the next sittings of the Supreme Court, Nowlan brought his action of replevin against Wilson, but failed, causing an additional expense of £80 to the present plaintiff; and on enquiry, respecting the bondsmen, it turned out that Madden was a pauper, and that Carberry had been hanged for horse stealing.  These were the grounds for the present action.  The defence urged on the Court by numerous witnesses was, that the bondsmen were men of property at the time they were taken.  The Jury found a verdict for plaintiff, £121 1s.

Dr. Wardell and Mr. Allen for plaintiff, and Messrs. W. Foster and Norton for defendant.

 

 

Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Australian, 21 June 1833[2 ]

 

Wilson v M'Quoid. - Mr. Foster, on behalf of the defendant, moved for a new trial, being on the ground of a misdirection by the learned Judge.  Dr. Wardell supported the verdict, contending that the direction of the learned Judge was correct, and also upon another ground, that the bond taken by the Sheriff was not in conformity with the Act of Parliament.  He also stated that this was the second application for a new trial, after two concurrent verdicts, and out of mercy to the defendant the Court should not again interfere.

The Chief Justice in delivering his opinion that a new trial must be refused, stated, it was quite lamentable to think that there was no provision which could protect the Sheriff, while discharging his duty, to the best of his ability, from the distressing consequences of an action like the present.  The Sheriff, however, had a duty to perform, and the law was too plain to admit of a moment's hesitation.  The Act of Parliament by which the Sheriff is required to take sureties in replevin, specifies that they shall give bond in double the value of the goods distrained.  The plain direction had not been complied with, and it was unnecessary to go further into the case, as the Sheriff had rendered himself liable to the  plaintiff in the present action.  The Court had gone its utmost length in granting a new trial on the first occasion, and, however, much they might regret the situation in which an officer of the Court was placed, it was beyond their power to relieve him.

Mr. Justice Dowling and Mr. Justice Burton concurred in this opinion, and the motion was refused.

 

Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

 

[p. 85] This was an action on the case agt the sheriff of N.S.W. for taking insufficient pledges in replevin.  This case was tried twice, first before Dowling J. (See vol. 70. p. 165.) & the last time by Burton J. on 3d April last.  The declon set forth the proceedings in replevin by Plf as landlord of one Nolan, upon when there was a distress for rent in arrear, amounting to 50£; & he gave a replevin bond with two sureties named Carberry & Madden.  The bond set for the penalty to be 147£. the supposed amount of the rent, & described the single value of the goods distrained by the Deft to be 200£.  There was proof of the insufficiency of the sureties; but the principal ground of liability charged agt the Deft, was that by his own shewing he had taken bond for the single value of the goods only instead of double [p. 86] according to the [?] of the statute 11 G. 2. c. 19.  The plf had a verdict with leave to Deft to move to enter a verdict on his behalf.

The Court.  We think the Deft has made himself liable by taking (according to his own shewing) a bond in single the value of the goods distrained instead of double.  The object of the replevin bond, is not to satisfy the rent, but to return the goods in specie, & pay the expenses of the replevin &c. -

Rule refused.

 

Notes

[1 ] On earlier proceedings, see Sydney Herald, 4 March 1833.

[2 ] See also Sydney Herald, 17 June 1833.  For comments on this case and the sheriff's liability generally, see Australian, 21 June 1833.

Published by the Division of Law, Macquarie University