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

Porter v Macquoid [1835] NSWSupC 76

sheriff, liability of  fieri facias, failure of title  fieri facias, sale of debtor's interest only  contracts, total failure of consideration

Supreme Court of New South Wales

Dowling J., 22 September 1835

Source: Sydney Herald, 24 September 1835[1 ]

Tuesday.  Before His Honor Mr. Justice Dowling, and Messrs. Manning and Perry, Assessors.

Porter v. Macquoid.  This was an action brought by the plaintiff to recover from the defendant, the High Sheriff of the Colony, the sum of £60, with interest thereon for five years, plaintiff having received no consideration for the same.  It appeared that on the 16th January, 1830, the plaintiff, with several other persons, attended a sale advertised by the Sheriff, of certain property in George-street, under a writ of execution in a case Stephen v. Joyce; previously to the commencement of the sale, some enquiry was made as to the nature of the title, when the then Under Sheriff, Mr. Prout, as deposed to by three respectable witnesses, undertook to guarantee a good title; under this assurance the sale proceeded, and the plaintiff became the purchaser for the sum of £250, paying the sum of £60 as a deposit on the purchase, agreeably to the terms of sale; and a person who then held an unexperienced lease of the premises, at a weekly rent, was instructed to look upon the plaintiff as his future landlord.  It was subsequently discovered that the defendant Joyce, had, at the time of sale, no interest whatever in the premises, he having previously conveyed it to a person of the name of Ryan; and when the plaintiff went to the Under Sheriff to pay over the residue of the purchase-money, and to be put in possession, he was told that he might get possession in the best way he could, as the Sheriff would have nothing to do with it.  Finding that he could not obtain possession, nor effect a ratification of his purchase, he applied to the Sheriff for a return of his £60 deposit, but from that time to the present he had not received it, the Sheriff having paid it over the plaintiff in the writ of execution abovenamed, taking his indemnity, so that in the present action the Sheriff was merely a nominal party under that indemnity.  The case had been tried last year, when a verdict was returned for the defendant, but a motion having been subsequently made for a new trial, it was granted, and the case again came on this day.  Mr. Samuel Smart, Under Sheriff, proved the writ of fi. fa. also the indemnity given to the Sheriff in the case.

Mr. Nichols proved the handwriting of Mr. Stephen to the receipt given to plaintiff for the sum of £60 as deposit on the purchase.

Mr. H. Ashly sworn.  Attended a Sheriff's sale about five years ago at the suit of Stephen v.Joyce; saw plaintiff there; there was some enquiry by the persons in attendance respecting the title; Mr. Prout, the Under Sheriff, who acted as auctioneer, said, whoever became the purchaser should have as good a title as could be given to any other place; the terms were, a deposit upon the purchase, and possession before the second payment was made.

Cross-examined.  Was present before the sale commenced; knew that a man named Ryan then resident on the premises had a lease; he continued to live there after the sale; could not say whether it was usual for Sheriffs to guarantee sale or not; had attended many sales by the Sheriff; could undertake to say Mr. Prout guaranteed a good title on that occasion, as also Mr. Sydney Stephen; it was understood to be a disputed title, but under such encouragement the biddings proceeded; Ryan was directed by Mr. Prout to consider Mr. Porter his tenant; the purchase was a bargain; would not have given £1,000 for it.

This evidence was corroborated by Mr. Andrew Byrne, Mr. Charles Nightingale, and Mr. Thomas May, who attended the sale on that occasion.

On the part of the defence, Mr. Prout denied that any such guarantee had been given, but on the contrary, had read before the commencement of the sale, a notice from a Mr. Thomas Ryan, that the property had been purchased by him from the defendant Joyce, and cautioning the Sheriff against selling the property, which would be at his risk.

Mr. Stephen corroborated the evidence of Mr. Prout, and stated, that at the time of sale the parties in attendance were warned that the purchaser of the property would but a lawsuit.

His Honor put the case to the Assessors on the question, whether from the evidence they were satisfied that a guarantee had been given, as deposed to by the evidence for the plaintiff; they would consider whether it was probable, from the circumstance, that in no case is the Sheriff understood to do more than convey the right, title, and interest of a defendant; whether the defendant had any title or not, was not a question for their consideration; if they were of opinion that a good title had been guaranteed at the time of sale, the plaintiff was entitled to recover.  The Assessors found a verdict for the plaintiff  Damages, £87 4s.

 

Notes

[ 1] See also Australian, 25 September 1835, stating that the verdict was for £60, plus £74 4s. interest.

Published by the Division of Law, Macquarie University