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

McQuoid v. Thornton [1834] NSWSupC 79

sheriff's officers

Supreme Court of New South Wales

Forbes C.J., 30 June 1834

Source: Sydney Herald, 3 July 1834[ 1]

McQuoid v. Thornton. - This was an action brought by plaintiff, High Sheriff of the Colony, against the defendant, formerly a bailiff in his department, on a bond of indemnity entered into by defendant on his appointment to office.  It appeared that Mr. Caleb Wilson had distrained on the effects of one Richard Nowland, resident at Portland Head, for rent, who replevied, and produced two sureties to the bond who were accepted by defendant, but who subsequently proved to be persons of no substance, and one of them in fact, was tried for cattle stealing, and executed a short time subsequently, the other removing from the neighbourhood; the knowledge of which facts coming to Wilson, he entered an action against the present plaintiff, as Sheriff, for taking insufficient security to the replevin bond in his case, and obtained a verdict against him for £233 18s. 3d., which sum, together with costs of proceeding, plaintiff now sought to recover at the hands of defendant, under the bond entered into by him for the faithful and correct performance of the duties of his office; the bond bears date 23th [sic] July, 1831, but was not executed for some months after defendant commenced his duties, and subsequently to the taking the replevin bond, by which plaintiff was damnified.  On this ground,

Dr. Wardell contended that defendant was entitled to a non-suit, no bond of indemnity existing between him and plaintiff at the time.

Mr. Foster, for the plaintiff, contended that the bond took a retrospective effect although not fully executed until some time after defendant joined the department, being afterwards executed by the parties, was in full force from the time of its delivery.

It was sought to be proved on the part of the defendant, that plaintiff had been damnified by his own acts in as much as defendant on his enquires at the Sheriff's Office on the subject of the sureties proposed by Nowland to the replevin bond had been referred to the gaoler at Windsor, who having a good knowledge of circumstances of the inhabitants of the district, would be enabled to give him the necessary information.  In consequence of these specific directions, defendant produced the proposed bail to Mr. Walpole, at Windsor, who said they would do.

This was denied by Mr. Prout, on the part of the plaintiff, as being most improbable that reference would be made in a matter of so much importance, to a person whom it was never conceived possessed knowledge necessary to direct any branch of the business of the Sheriff's department.  The bond was proved in the usual way.

His Honor, in putting the case to the Jury, ruled that the bond had a retrospective effect, and it was then for their consideration whether the breach committed by the defendant in taking good and sufficient bail, was one of the acts, against the consequences of which, defendant had bound himself to hold plaintiff harmless by virtue of said bond; the law required that a bond of replevin should be given in double the amount of the claim, yet the amount of the bond in the present case was £140, the claim being £250.  If they were of opinion that defendant acted under the implied direction of the plaintiff, it would release him from the responsibility of the act; but there was an absence of proof that the plaintiff was privy to the reference to the gaoler, set forth on behalf of defendant.  There had been two several actions against the Sheriff, arising from the incorrect performance of defendant's duties, by which plaintiff had been damnified, and he had therefore a right to look to the bond for indemnification from the heavy expenses in which he had been involved.  If they were satisfied that such bond had existed, and that defendant had failed in the performance of duty, under the condition of the bond, to the damnification of plaintiff, it would be for their consideration to what extent.

The Jury returned a verdict for the plaintiff, damages £281 5s. 9d.

Counsel for the plaintiff, Messrs. Foster and Norton; for the defendant, Mr. Wentworth and Dr. Wardell.

 

Notes

[1 ] See also Sydney Gazette, 3 July 1834; Australian, 4 July 1834.

Published by the Division of Law, Macquarie University