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

Henderson v Macquoid [1836] NSWSupC 17

fieri facias - sheriff's liability

Supreme Court of New South Wales

Dowling J., 22 February 1836

Source: Sydney Herald, 25 February 1836[1 ]

Tuesday. - Before Mr. Justice Dowling, and two assessors.

Henderson v. T. Macquoid, Esq. - This was an action against the Sheriff to recover the value of a horse, alleged to have been wrongfully seized and sold by him under a writ of fieri facias, issued against one Capper Pass of Sydney.

Mr. Foster appeared as Counsel for the plaintiff; the Solicitor General for the defendant.

It appeared in evidence that some time in the year 1832, two persons, named Capper Pass and Patrick Moore, became securities in a replevin bond for one Thomas Henry Hart, who was afterwards transported to Norfolk Island for larceny.  The sureties were sued upon the bond, and Moore was eventually obliged to pay the whole amount of the damages and costs, and subsequently brought an action against Pass for his proportion, and obtained a verdict.  About this time, it was proved that the horse in question - and entire horse - was delivered over to the plaintiff, Henderson, in part consideration of a mortgage debt owing to him from Pass; and that he (the plaintiff) exercised an ownership over the animal, and gave him the name of ``Northumberland."  Subsequently to this, however, it appeared that he horse was in the sole possession of Pass - was worked by him, and hired out to others - and, in fact, was generally understood by all the witnesses who spoke to this part of the case, to be the property of Pass and of none other.  On the part of the plaintiff, however, it was proved that the transfer of the horse to him was bona fide, and not collusive, as alleged on the other side; and that the subsequent use of him was allowed to Pass in consideration of his keep until the season when his services would be required for mares.  In support of this part of the case, a witness proved the authenticity of a receipt produced for the amount charged for advertising in the Sydney Herald the horse ``Northumberland" to ``cover," made out in the name of the plaintiff.  The horse was taken in execution on the premises of a person named Kelsey, a publican at Lane Cove, who appears to be the son-in-law of Pass, and was bought in by the latter, contrary, as it appeared, to the advice of one of the parties present, who said that ``if he bid for it he would excite a suspicion that the animal was his own and not the plaintiff's".

Mr. Justice Dowling summed up the evidence in the clearest manner.  His Honor told the Assessors that the case was one altogether depending upon the degree of credit they might attach to the testimony given by the witnesses on either side.  Did they consider that the original transfer of the horse to the plaintiff was a bona fide transfer, and not intended to defeat the just claim of an innocent creditor?  Upon this part of the case, they had the testimony of Mr. Norton, one of the most respectable solicitors of that Court, in whose office the instrument of transfer was prepared and executed.  But that gentleman could offer no evidence as to the consideration that was given.  There was no doubt, upon the testimony of several witnesses, whose evidence was not attempted to be impeached, that a public delivery of the horse to the plaintiff took place at Parramatta - it was also in evidence that he had adopted it by giving it a name - and it was besides, proved upon the testimony of another witness, that he had professedly exercised an ownership over it by advertising it ``to cover," in the Sydney Herald.  But then, the Assessors were to look at the whole of the facts detailed to them in the evidence, and say whether they were of opinion that all this was done collusively and colourably? and whether, although the original delivery to the plaintiff did take place in the manner stated by the witnesses, it was still done for the purpose of defeating the lawful claim of an innocent creditor?  If that were the case, and if the plaintiff, by his act, had allowed Pass to deceive the public by the appearance of property, and gain credit thereby, he was bound to tell them that the law would not sanction such a course of conduct.

The Assessors found a verdict for the Plaintiff, damages 50l.

The Sheriff was merely a nominal defendant in this case, he having been indemnified by the execution creditor.


In banco, 12 March 1836

Source: Sydney Herald, 14 March 1836[2 ]


Saturday. - Henderson v. Macquoid. - This was an action to recover the value of a horse alleged to have illegally seized in execution, and sold by the Sheriff.  At the trial of the cause during the present term, a verdict was found for the plaintiff, and an application for a new trial was made this day, on the ground of that verdict being contrary to the evidence, which went to shew a fraudulent and collusive possession in the plaintiff, for the purpose of defeating the just claim of an innocent creditor of the real owner of the horse in question.  The case having been argued at some length by Counsel on both sides, the Court granted a new trial.[3 ]



[ 1] See also Australian, 26 February 1836.

[2 ] See also Australian, 15 March 1836, noting that ``the horse, it appears, will turn out a dear one, Mr. Unwin having already received six suits of costs through this litigation."

[3 ] On the retrial before Kinchela J. and two assessors on 20 June 1836, the assessors awarded damages of £30 (according to the Australian) or £50 (Sydney Gazette) to the plaintiff: Australian, 24 June 1836; Sydney Gazette, 23 June 1836.

Published by the Division of Law, Macquarie University