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

Wentworth v. Macquoid [1841] NSWSupC 85

Sheriff's liability - fieri facias

Supreme Court of New South Wales

Stephen J., 12 August 1841

Source: Sydney Herald, 13 August 1841 [1]



            Before Mr. Justice STEPHEN and a Special Jury.



            This was an action on the case against the sheriff: the first count was for a false return to a writ of fieri facias, issued by the plaintiff upon a judgment against two persons of the name of Smith and Salmon. The second count was for not levying under the writ in due time.

            There were four pleas; 1st, the general issue; 2d, that the defendant did not seize the goods of Smith and Salmon, or of either of them; 3d, that the goods seized were the goods of Hughes, Dawson, and Titterton; 4th, that there were no goods to cover the amount of the writ.

            Mr. DARVALL opened the pleadings.

            Mr. FOSTER stated the case for the plaintiff.

            The plaintiff proved the issuing of the writ on the 21st of April; the return ofnulla bona by the under-sheriff, in the name of the sheriff, and with his authority; the seizure of the goods as the property of Smith and Salmon upon the writ at the suit of the plaintiff; the sale of those goods by the authority of the sheriff, and the payment of the proceeds of the sale to the attorney of the sheriff. The plaintiff also proved the subsequent loss of the sheriff's warrant for the levy, and that it was for the amount of the seizure.

            The sale took place on the 5th and 6th of May, 1840, and £2,045, as the nettproceeds of the sale, was paid over to Messrs. Carr and Rogers on the 6th of August, by the authority of the defendant.

            The writ was marked for £2,073 17s. 6d., and was issued on the 12th of April, 1840, by Mr. Hayward, as the attorney for the plaintiff.

            The return to the writ was made on the 29th of January last, and was at the instance of the present attorney for the plaintiff; but was moved for in the name of Mr. Hayward about a month before the commencement of this action.

            The SOLICITOR GENERAL stated the case for the defendant, and said that the Sheriff - being indemnified - was a mere nominal party in the case, and that the real defendants were his clients, Richard Dawson and J. T. Hughes, as trustees of the estate of Smith and Salmon.

            The evidence for the defendants went to establish the following facts:- On the 17th of April, 1840, being a Good Friday, Smith and Salmon executed warrants of attorney to the plaintiff for the amount of his claim against them, and to one Frazer, for £4,250, together with a deed of assignment for all their effects to the plaintiff and one Dutton, to take effect after the satisfaction of the judgments to be entered on the warrants. Friday, Saturday, and Monday, were holidays, and no business could therefore be transacted in the Supreme Court. Mr. Rogers, the attorney for Dawson and Hughes, having on Monday learned of the execution of these instruments, upon that day prepared another deed of assignment to Dawson, Hughes, and Titterton, for the benefit of all the creditors of Smith and Salmon, which was executed by them upon the same day. Titterton never acted upon the deed, but under it by immediate possession of part of the effects of Smith and Salmon was given up to an agent for Dawson and Hughes, and an order was also given to deliver up the remainder of their property on the 21st of April, the execution of this deed was publicly advertised; on the 22nd special notice of it was given to the Sheriff, and when the plaintiff's execution was executed on the 23rd, the agent for Hughes and Dawson was in possession of a principal portion of the effects of Smith and Salmon. On the 28th it was agreed upon by Mr. Hayward as the then Attorney for the plaintiff, and by Mr. Rogers, that a sale of the goods seized should take place, upon the condition of the proceeds being retained by the Sheriff until he received an indemnity. On the 6th of August an indemnity as given by Mr. Rogers; and on the 12th the proceeds of the sale were paid over to him. On the 13th an advertisement was published, abandoning on the part of the plaintiff all claim on the estate of Smith and Salmon, under his deed of assign -Dawson advertised to make a payment of a dividend in the estate, and on the 16th Mr. Hayward, as Attorney for the plaintiff, claimed a dividend in pursuance of the advertisement. On the 11th of August a sum of £25 was paid to Mr. Hayward by Mr. Rogers, on account of some charges incurred on behalf of the plaintiff, and on condition of the plaintiff's waiving all benefit under his deed of assignment; and on the 11th of February last in the presence of Hayward and of Mr. Wm. C. Wentworth, Mr. Rogers communicated all these circumstances to the plaintiff who did not dissent upon any of them.

            It was also proved that the plaintiff was a regular subscriber to the paper in which the advertisement appeared.

            The deed was executed by several creditors of the estate of Smith and Salmon.

            Mr. Foster addressed the jury for the plaintiff, and said that the whole case had turned upon the validity of the deed of assignment to Hughes and Dawson, which, he contended, was void, as against the plaintiff, on several grounds; but specially, because it purported to be merely for the benefit of such only of the creditors as should execute it or accede to it, and release all claims on the estate of Smith and Salmon, instead of being for the benefit of all the, creditors of the estate; besides, the learned counsel argued, that even if it were a good deed it should have been pleaded by way of estoppel, or in accord and satisfaction.

            Mr. JUSTICE STEPHEN, in charging the Jury, said, that he regretted having hastily, and without sufficient consideration, to decide upon a question of such importance, without having the benefit of the assistance of his learned brother judges; but as he was obliged to decide the question, he had no hesitation in saying that, in his opinion, the deed was not only voidable, but void as being entirely opposed to the policy of the insolvent law in this Colony. In England it was the policy of the law to secure to all the creditors an equal distribution of the debtor's property, whereas, in this Colony, where there are no bankrupt laws, it was the policy of the insolvent law, as it then stood, to encourage such creditors to seize upon the property of his debts and to sweep away everything for the satisfaction of his own demand, but although the legislature had chosen to leave the law in this state, as it was the law, he was bound to decide by it, and therefore, as the deed appeared to have been executed with a full knowledge of the previous execution of the warrants of attorney in favour of the plaintiff, as well as upon the ground relied upon by the counsel for the plaintiff, he was of opinion that it was void, and he would direct the jury to find for the plaintiff for the amount of the net proceeds of the sale.

            The counsel for the defendant submitted that the question as to whether the plaintiff had acceded to the deed should be left to the jury for their opinion, and after some argument the learned judge consented, leaving the question to them, but concluded his charge by recommending them to find a verdict for the plaintiff on the grounds that he had stated.

            The Jury immediately found a verdict for the defendant.

            Mr. JUSTICE STEPHEN said, that he always had received the verdict of a jury with respect, and that he always would so receive it, even in opposition to his direction, and, therefore, he wished to now their opinion upon the point of the plaintiff's assent to the deed.

            The Jury, after a short consultation, announced, by their foreman, that they were of opinion that the plaintiff acceded to the deed with a full knowledge of its contents.

            Counsel for the plaintiff, Messrs. Foster, Windeyer, and Darvall; for the defendant, the Solicitor General, and Messrs. Manning and Broadhurst.

            Attorneys for the plaintiff, Messrs. Unwin and Want; for the defendant, Messrs. Carr, Rogers and Owen.


[1]              See similarly, Gore v. Macquoid, Sydney Gazette, 29 May 1841;Australian, 27 May 1841.

[2]              Macquoid was the Sheriff.

Published by the Division of Law, Macquarie University