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

Terry, assignee of the Sheriff v. Hart [1834] NSWSupC 41

fieri facias, procedure - replevin - Supreme Court, jurisdiction of

Supreme Court of New South Wales

Dowling J., 12 March 1834

Source: Sydney Herald, 17 March 1834[ 1]

Terry, Assignee of the Sheriff, under a Replevy Bond, v. Hart. -

Mr. Foster stated the case. - Defendant owed plaintiff £243, for which plaintiff distrained; two persons were induced to become sureties, consequently the goods were replevied, and Terry's bailiff dispossessed.

Mr. Wentworth stated that the Sheriff under writs of Fieri facias, took possession of the property in question.  Exparte affidavits had been made to prove the goods had not been replevied, and order was given that the bond should be cancelled.  In consequence of this proceeding, Mr. Terry instituted an action on the case, and judgment was given on the occasion, which still remains in abeyance.  The object, therefore, for the Assessors would be, when put in possession of the facts of the case, to decide whether the bond was a good and valid instrument.

Mr. Hughes proved the letting of the farm; for the rent of which after repeated demands of payment for the same, distress was made in 1832. - Verdict for the Plaintiff.


Forbes C.J., Dowling and Burton JJ, 3 April 1834

Source: Australian, 11 April 1834[2 ]


Monday, In Banco. - Terry v. Hart and Others. - This was an action on a replevin bond Declaration contained the usual counts, and averred that the seals of the defendants Pass and Moore were cut off by mistake.

Hart did not appear, being without the jurisdiction of the Court, and the other defendants pleaded, first, general issue, non est factum; 2ndly, the plaintiff did not distrain; 3rdly, that the plaintiff did not replevy and make deliverance of the goods; 4thly, that the seals were not taken of by mistake; 5th, That before the making of the distress the Sheriff had writs of fieri facias against Hart, which continued in force till after the taking of the replevin bond; 6th, the same plea except averring that the Sheriff had the writs delivered before the taking of the replevin bond; 7th, that the Sheriff did not replevy or deliver the goods to Hart.

The facts of the case appeared to be as follows:  Hart rented a farm from Terry, and there being an arrear of rent, Terry distrained and Hart repleved; the Sheriff had at the time of the replevy, writs of execution against Hart and the replevin bond having been entered into, instead of returning the goods to Hart, he levied by virtue of the writs and sold them.

Defendants Moore and Pass applied to the Court to have the replevin bond cancelled, in consequence of the goods not being conveyed to them.  The Court were taken by surprise and they ordered the bond to be cancelled, which was done by the Sheriff, cutting off the seals of Pass and Moore.

The ensuing term, Terry brought an action against the Sheriff, for not taking a proper replevin bond and obtained a verdict; on a motion to set a side the verdict, the Court determined that they ought to have cancelled the bond, and therefore restored it to its pristine effect, they declined delivering judgment, but ordered to remain in abeyance till the present action was determined.  In consequence the present action was brought.

Mr. Foster, with whom was Mr. Norton, now urged that in the first place, the Sheriff had no right to grant replevins in this Colony.  Secondly that if he had, he had not granted it properly and thirdly, that the bond being a chose in action and not in conformity with the Statute, was not assignable.  The learned gentleman then called witnesses to shew that the defendants held goods as a security, but that as soon as the seals were torn off and their liability released, they gave up their security.

Mr. Wentworth having replied, His Honor Mr. Justice Burton over ruled the objection of Mr. Foster, and having summed up, the assessors found a verdict for the plaintiff on the bond.

A motion for a nonsuit or a new trial having been filed.  Mr. Foster moved for the nonsuit on the following grounds.  First, that the seals were proved to have been cut with the privity and consent of the Sheriff, the then holder of the bond; 2ndly, that no replevin or deliverance to Hart was proved; 3rdly, that the condition of bond, being that Hart should prosecute an action of replevin in the Supreme Court, not being according to the statute, the bond was not assignable to plaintiff, so as to enable him to sue in his own name; 4thly, that as the seals were cut off before the assignment of the bond, such assignment could not be valid in law.  The learned Counsel also moved for a new trial on the ground, that the Judge misdirected the assessors in telling them, that the Sheriff was to be considered as Hart's agent in disposing of the goods &c.  He now urged that pledges could only be taken in the County Court to prosecute the suit with effect; that in all cases the party must have a writ from the County Court; that in case of a bail bond, unless it be taken according to the Statute, although good between parties it is not assignable; 4th Maule and Selwyn p. 120.  The party only who has jurisdiction to decide on plaint can grant replevin; the superior Courts in England could not grant replevin, and that therefore the Supreme Court could not grant a writ of replevin; and that therefore the Supreme Court could not grant a writ of replevin; 2ndly, there had been no replevin made, it was laid down that replevin was a re-delivery on pledges to prosecute the suit, the Sheriff was not bound to replevy but might make a return to the writ, the Sheriff had a special property in the goods, but having writs he could not make a return; thirdly, the seals of the bond having been cut off by the Under Sheriff, it vitiated it; it was an alteration in the form of bond prescribed by the Statute.

Mr. Wentworth, who opposed the motion, stated that the last objection could not be tenable, because the order of Court placed the bond in its original state; great stress had been laid as to the form of bond.  The learned gentleman contended that there was no more deviation from the Act in the form used in this Country than the one used in England, and the statute 21 Geo. 2. being a remedial statute, ought to be construed liberally.  As to the plaint in the County Court the objection could be of no value; if there was no County Court, then a bond to prosecute in the Country Court would be an absurdity, in fact it became a question if this remedial Act was to be in force in this Colony.  With respect to the point of non replevin, the moment Sheriff removed plaintiff, it was a re-delivery to Hart, the Sheriff had a special property, but who had the general property - the property remained in Hart till execution executed.

The Chief Justice was of opinion that the verdict should not be disturbed.  With respect to the objection as to the cutting off the seals of the bond, the seals were actually cut off by the desire of the present defendant, it fell within the class of cases, where the seals were cut off by accident .  With respect to the learned Counsel's argument, that there being no County Courts the bond was not assignable, and that the Supreme Court could not grant replevin - argument was not tenable - the law of replevin was in force here, though there was no machinery to carry it into effect.  There was a Sheriff, but no County Court granted therefore the authority was vested in the Supreme Court, the fact of there being no jurisdiction elsewhere, vests in the superior Court the right to do justice to the parties.  As to the objection of there being no delivery of the goods, when the Sheriff's officers released the landlord from the tenant's goods, the property of the goods then became vested in the defendant, and reverted to their original state - the goods were seized by the Sheriff under writ to pay defendant's debt, they were therefore in his possession.

Mr. Justice Dowling coincided.

Mr. Justice Burton also agreed with his learned brethren, observing that the Supreme Court had a jurisdiction over all cases where there was not a special jurisdiction.  Motion refused.



Forbes C.J., Dowling and Burton JJ, 3 April 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96


[p. 6] Deft[3 ] by the assignee of the Sheriff of a replevin bond conditioned that Hart the tenant should at the next county court to be holden, then and there enter his plaint & the same prosecute with affects for Breach to that Hart did not prosecute his suit with effect etc.  At the trial before Dowling J. the plf had a verdict.

Mr. Foster now moved for a new trial on two grounds.  1st that this was not a bond assignable by the sheriff within the Stat. 11 G. 2. C.19 s. 23. There being no such [p. 7] thing as a County Court in New South Wales; & Second, that there never had been any replevin in fact made to the tenant, for the goods before they could come to his hands were swept away by the sheriff, who had himself granted the replevin; there was therefore no redelivery to make the bond effectual & binding either on the principal or sureties.

Wentworth contra.  First, the words of the bond, that the tenant should ``at the next country court" - prosecutor his suit with effect, may be rejected as surplusage.  The form of replevin bond in use, is not agreeable to the statute.  All that the statute requires is that the bond shall be conditioned ``for prosecuting the suit with effect."  It says nothing about the County Court.  But even if it did, still on the statute is remedial in aid of landlords [p. 8] it must be put in force with such machinery as we have in this Colony.  The prosecuting with effect in the County Court is mere matter of form; for in practice even at home the action in the replevin bond actually commences in the Supreme Court without a writ of ``le. fa. Co."  Secondly, in fact & in law the moment the Distress for rent was discharged by the executor of the replevin bond, the goods became redelivered to Hart the tenant, although they were immediately seized under a fi fa to satisfy an execution then sued out against him.

Forbes C. J.  As to the second ground for a new trial, I think that was lightly disposed of by the Jury under the direction of the Judge who tried the case.[4 ]  In law & in fact [p. 9] there was a redeliverance of the goods to the tenant in pursuance of the replevin bond.  As to the first point, I also think this was a bond executed within the meaning of the statute 119.2.c.19,s. 28.  So long as landlords of this country have a right of distraining for rent, so losing must the tenant have a right of replevin.  The stat. is a remedial statute for the benefit of landlords.  They have an abstract right of distress.  So I apprehended the tenant may repleving the goods to determine the landlord's right of distress.  Without the stat. the landlord could act distrain.  If so then the tenant has a right to all remedies given him under the Statute.  It may be that in words the bond in question does not pursue the statute.  Indeed it states more than [p. 10] the statute requires, for the statute is silent in requiring the condition of the bond to be to proceed to the replevin suit in affect in the County Court.  We have no county court & it is true that the Sheriff does not hold a County Court. - I think we may reject that part of the bond as surplusage, as being unnecessary & incapable of being proved from the infant condition of the Colony.  This Court is the Aula Bejis of this Colony & it has an original jurisdiction to grant replevins. - The form of the bond, in use, is merely the technical machinery by which the replevin suit is brought into Court.  It is only matters of practice, & not requisite by law.

[p. 11] Dowling J.

I am of the same opinion.  The bond is in effect, in compliance with the statute so far as that statute is capable of being applied in this colony.  Until now it has never been contended that the statute is not in force in this Colony.  If it be not, there is an end of distress as for rent, under that statute & replevins.  By the Stat 9G 4.c. 83.the laws of England come in, as well as stat, is in force in this Colony.  So far as the sae is applicable to the state & condition of this Colony.  The stat. in question is remedial & must be construed liberally both for landlords & tenants.  The obligation to prosecute with effect at the County Court, forms no part of the requisitions of the Statute, & we may reject, that as mere form, having nothing to do with the substance. [p. 12]  If the averment that the suit was not prosecuted with effect ``at the County Court" were material & required to be proved in order to support the verdict, why then we should pay there was a variance, but that is not so.  The declaration will show well enough without that averment.  The bond itself is good without that condition.  All that it means is, that the suit shall be prosecuted with effect.  i.e. success - in such Court as there is in the Colony, capable of determining the suit - the only Court is this Court which being the Supreme Court of New South Wales has an original jurisdiction to hold plaints in replevin.  The practitioners of [p. 13] this court have been in the habit of using the old form of replevin bonds in use in England where there happens to be County Courts.  But in practice even in England, the plaints in the County Court need not be removed before the Supreme Courts to the cognisance of a replevin suit.  This was noted in Dias v. Freeman[ 5] where it was held, that, that the action on the bond may be in a Superior Court, although the suit was never removed out of the County Court.

Burton J.  This court has marginal jurisdiction by the Stat. 9 G. 4.c.83. embracing within itself all the functions of the 4 Courts at Westminster.  Whether we have a County Court or not in this Colony is [p. 14] immaterial.  If we have not then the Court is bound to give effect to the Statute in question as far as we can.  It is remedial & must be construed & put into effect, as far as we have machinery.  The prosecution in the County Court, was impracticable, & we must use what machinery we have in order to give the King's subjects the benefit of the statute.  The defts by their execution of the bond admit its validity, & they can't be permitted to say it is not their deed, & take advantage of their own wrong.  It would be a fraud if they were now permitted to say that they did not prosecute with effect, because there was no County Court in the Colony. - They are stopped [p. 15] by their own deed.  As to the other point, I am clearly of opinion that there was in law a redeliverance of the goods. - The moment the replevin bond was executed, the tenant had a right to the goods - the right of possession, & he could have maintained Trover agt. a wrong doer for taking possession of them.  But his right of possession was rightfully determined by the execution of the fi fa immediately after his right of possession had accrued under the replevin bond.

R. R.[ 6]


In banco, 12 April 1834

Source: Sydney Gazette, 12 April 1834


Terry v. Hart. - Mr. Foster for defendant, said, that as the Court had already decided, in another case recently argued, against the pleas on which the present demurrer was raised, he should abandon them.  He should however object to the declaration, in a technical point of view; and also he should premise that as the Sheriff has no power to hold a plea of replevy, he cannot grant a replevy; it must be granted by the Supreme Court, which cannot modify an Act of Parliament, but can only say, what part of it does or does not apply to this colony.

Mr. Wentworth having briefly replied, the Court was unanimously off opinion that there was nothing in the objections, and refused the motion.



[1 ] The trial notes and other papers are in Dowling, Proceedings of the Supreme Court, vol. 93, State Records of New South Wales, 2/3276, p. 128.

[2 ] See also Sydney Herald, 7 April 1834; Sydney Gazette, 5 April 1834.  The Australian claimed that the decision was reached on ``Monday", presumably meaning 7 April 1834.  The Sydney Herald said unequivocally that it was decided on 4 April, and the Gazette on the 2nd.  Dowling's notes (Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 1) stated it as 3 April 1834.

[3 ] Marginal note in manuscript:  See Aute. Vol 93 p. 128.

[4 ] Marginal note in manuscript:  See Aute Vol 93. 128.

[5 ] Marginal note in manuscript:  5 T.R. 195.

[6 ] ``Rule Refused".

Published by the Division of Law, Macquarie University