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

Terry v Macquoid (1835) NSW Sel Cas (Dowling) 474; [1835] NSWSupC 30

replevin - sheriff's liability - negligence

Supreme Court of New South Wales

Hearing, 20 March 1835

Source: Australian, 20 March 1835

This was an action against the Sheriff for accepting insufficient bail.  It appeared that a year ago the plaintiff obtained a verdict against a person named Devlin for £170; Devlin produced two securities for that sum, named Connor and Stewart, and the Sheriff accepted them.  When the bond became due, Devlin failed to pay it, and the two securities declared themselves insolvent.   A number of witnesses were called, who gave the two securities good as steady persevering men.

 

Forbes C.J., Dowling and Burton JJ, 28 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463

[p.103]

[1835

Saturday

28th March]

[The sheriff having satisfied himself by general inquiries into the apparent sufficiency of the sureties in a replevin bond, but failed to inquire personally as to property which the Sureties specifically described themselves to be possessed of: & it turned out that the sureties were insufficient:-  Held that the sheriff was not liable in case for negligence.]

In Banco

Samuel Terry v Thomas Macquiod Esq

Case against the sheriff of New South Wales for taking insufficient sureties in a replevin Bond for 87£ upon a distress for rent at the instance of the Plf against the goods of one Frederick Devalois, to writ, David Stuart, and James Connor.  Plea Not Guilty.  At the trial beforeDowling J. & a special Jury during the present term, it appeared in evidence that when the two sureties came to the Sheriff's Office to execute the replevin bond, the Under Sheriff asked them the amount & description of their property, and he took a note in writing of what they stated. Stewart described two houses of which he represented himself to be the owner, one in Prince's Street & the other in Elizabeth Street, & Connor described a stock of goods which he was possessed in his shop.  The under sheriff stated that he made many inquiries generally during three or four days respecting the general property and respectability of the [p.104] sureties, but not as to any particular property they possessed.  He did not ascertain whether in fact they were possessed of the property they described to be theirs.  He refused taking them in as sureties until he had an opportunity of making inquiries respecting their property, & he told them so.  The note in writing he had taken, was for the purpose of their making an affidavit of their sufficiency & he gave them to understand that such was his object, & they appeared ready & willing to make the affidavit but it was not made.  It was not usual to make such affidavit in such cases.  They signed the note he had taken.  He first took from them by word of mouth a general description of their property, which not satisfying him, he took their particular statement, and then they executed the bond.  The Replevin bond was dated the 8th April & shortly afterwards execution having been taken out against Connor at the suit of one Hughes no property of his could be found to satisfy the writ, and he went to [p.105] gaol, & continued in gaol as an insolvent debtor at the time of the trial of the present action.  With respect to the other surety, it appeared that shortly after the execution of the bond, he left Sydney, and no one knew where he was at the time of the trial, and he had left his residence in Sydney in arrear for rent.  There was general proof of his being in insolvent circumstances.  Evidence was produced on the part of the Deft to shew that the surety Connor was at the time the bond was executed in circumstances of apparently good credit, & was trusted largely by Merchants & others in his trade of a Baker & dealer in grocery.  His shop was apparently well stocked, & he was reputed to have cattle up the Country.  One witness said he would at that time have taken his security for 200£.  Evidence was also given that Stewart was reputed at the time the bond was executed to be a man of considerable substance. [p.106]  Extracts from the Books of the Registrars office were also produced to shew that at the time the bond was executed Stewart was the mortgagee of land with four houses thereon in King Street, for the sum of £642.17.3, the mortgage hearing date 14 Augt 1832, & that he was also mortgagee of the same premises for a further sum of £300, dated 1st June 1834.  The writ at the suit of Hughes v Connor was dated 22d April 1834 being 14 days after the date of the replevin bond.  The Plf having taken an assignment of the bond found it useless to proceed against the sureties from their insolvency, & he therefore brought the present action against the sheriff.  On the part of the Plf it was contended that the sheriff should have gone farther into his inquiries respecting this sufficiency of the sureties: - the sureties having pointed out particular property, he ought to have gone on to ascertain whether they really possessed such property, & failing to do so, he is liable on [p.107] the authority of Scott v Waithman (3 Stark. 170.) where it was held that [sic].

The Judge in directing the Jury distinguished this case from Scott v Waithman by observing that in that case there was a piece of information peculiarly within the reach of the sheriff, relating to the circumstances of the sureties, which he failed to ascertain namely, that directly before the bail was taken one of them had been arrested .  The Sheriff had bailed to search to his office, as was the usual practice to ascertain whether there were any writs out against the party proposed as bail, & on that ground he was held liable for his vigilance.  The liability of the Sheriff was the same in this Colony as in England, & must be tried by the like rules.  The Sheriff was bound by law to grant replevin, & if he refused without good & sufficient grounds he was liable to an action.  In taking bail in a replevin bond he was not bound to make [p.108] the sureties justify as to their sufficiency.  He ought no doubt to make general inquiries as to their sufficiency, & the question for the Jury to determine was, was not whether in fact these persons were insufficient, but did the Sheriff use such fair & reasonable diligence, as a public officer might be expected to exercise in such a matter, to ascertain the apparent substantiality of these men before he took their bond?  He was not bound to take stock or inquire into the title to the property which the sureties stated themselves to be possessed of.  Had there been here wilful neglect?  The property no doubt was pointed out by the description given to the Sheriff but did not follow that he was bound to go into an inquiry into the truth of the statement given by the Sureties.  To impose such a burthen on the Sheriff would be intolerable.  The question then was did he [p.109] act with reasonable diligence in inquiring into the general sufficiency of the bail.  If he did then he was not liable in a case where the law costs upon him a mere minimus terial duty.  The Jury found for the Deft.

Wentworth now moved for a new trial on the ground of misdirection, & insisted that as the Sheriff had particular information given him of the property alleged to have been possessed by the Sureties he was bound to follow up the inquiry and ascertain the truth of their statement.  Failing to do this, he was guilty of such negligence as would render him liable & he relied uponScott v Waithman  (3 Stark.170) as an express authority.

Plunkett S.G.  The case cited on the other side was only a nisi prius decision, & was determined according to its peculiar circumstances.  Here the sheriff has done all that the law required him to do, by making every inquiry that a reasonable [p.110] and prudent man could be expected to do even if it were his own case.  He delays granting the bond till the very last moment, & when the sureties are ready to make affidavit of their sufficiency, then he has it executed after having in the mean time ascertained that the bail are reputed to be in good circumstances, & apparently to all the world, worth the sum to be secured.  What more can be required of a minimus terial officer like the sheriff - who is between two fires - for if he refuses to grant the replevin he is liable to an action, & if it turns out that the sureties are insufficient he is still to be responsible!  The cases of Hindle v Blades (5 Taunt.225.) and Sutton v Waite (8 JB Moore 27) are in point.  In both it was held that the sheriff is not bound to make personal inquiries into a mans real circumstances - to take stock - & cast up his amounts to see [p.111] if he is able to pay 20/ in the pound.  It is sufficient for him to ascertain that the bail are considered responsible by other persons.  If the rest of the world would have trusted these men that is sufficient for the sheriff, & the evidence goes to that extent.

Forbes CJ. We are of opinion that the Jury were properly directed & that they drew the right conclusion from the circumstances.  The Sheriff is bound to take two responsible persons in a replevin.  It seems to be admitted as a general principle that the Sheriff in ascertaining the responsibility of the bail, is not bound voluntarily to go beyond the apparent sufficiency of the surety & that he may take them by that test unless some facts come to his knowledge by some means or other, giving him reason to suspect that men apparently sufficient are not so in fact.  It is contended that the case of Scott v Waithman is an authority to [p.112] shew that in this case in as much as the Sheriff had property specifically mentioned to him described particularly he ought not to have contented himself with the bare statement of the sureties, not with their general reputation for sufficiency but should have followed his inquiries up and ascertained whether in fact they possessed the property described.  I don't think the nisi prius decision of Lord Chief Justice Abbott goes to that extent.  In that case there was a specific fact communicated to the Sheriff peculiarly within his province to know of true which he failed to ascertain by the books in his own office, namely that one of the bail had shortly before been on mesne process[1 ]arrested.  It was a rule in the Sheriffs office to search the books in such cases & having neglected to take that precautionary step to inquire into the sufficiency of the bail, he was held liable.  Here all reasonable caution appears to have been exercised. [p.113]  Three or four days are taken to inquire into the general credit & sufficiency of the bail before the bond is executed.  A list is given of the property said to be possessed by the bail, who are willing to make affidavit of their sufficiency.  After all this, Investigation the bail are taken.  I think the principle of the cases of Hindle v Blades & Sutton v Waite must govern this case.  If the Sheriff actually knew of the insolvency of these persons or had within his immediate personal reach the means of ascertaining their insufficiency that could be another matter.  It is true the property was described to him but I do not think he was bound to lift the truth of the statement, & make personal inquiries into the sufficiency of the Bail.  No more active duty is imposed by law in the Sheriff than to ascertain the apparent sufficiency of the sureties.

Dowling J. & Burton J. were of the same opinion.

Rule Refused.

 

Notes

[ 1] Imprisonment for debt before judgment, on writ of capias ad respondendum.

Published by the Division of Law, Macquarie University