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

Reynolds v. Hughes (1842) NSW Sel Cas (Dowling) 45; [1842] NSWSupC 74

trover - fieri facias

Dowling C.J., Burton and Stephen JJ. 11 August 1842

Source: Dowling, Select Cases, Vol. 4, S.R.N.S.W. 2/3464, p. 257

Where the Sheriff seized cattle in execution of the plaintiff's judgment, and the Sheriff then sold the cattle upon receiving an indemnity bond from the defendants; held the defendants, by giving the indemnity bond and inciting the Sheriff to sell the cattle, were intermeddlers who were liable in trover to the plaintiff.*

Trover for cattle. Pleas 1. Not Guilty. 2. Denying plaintiff's right of property.

Dowling J. At the trial before Burton J. it appeared that Sparke having claim against one Henry Briggs, in which charge the plaintiff had placed the cattle in question, judgment was entered up and execution taken out at the suit of Sparkes against Briggs. The Sheriff seized the cattle in question. The plaintiff put in a claim to them; and the Sheriff having refused to sell without an indemnity, the defendants at the instance of Sparkes gave him an indemnity bond, and thereupon the Sheriff sold the cattle, the proceeds being applied in satisfaction of Sparke's execution. The plaintiff now brought trover against the defendants as sureties, treating the execution of the indemnity bond as an act of conversion. It was proved that the defendants received nothing of the proceeds of the execution and there was no evidence that they had any personal pecuniary interest in the transaction. The learned Judge ruled that the defendants were not liable in trover, and directed a nonsuit.

On moving to set aside this nonsuit, and to obtain a new trial, the question was whether a surety, without interest, was liable in trover as a wrong doer, by the mere act of executing a bond to indemnify the Sheriff against the act of selling goods taken in execution at the suit of the party really interested, and to whom the proceeds of the execution were paid. It was admitted that there was no case in point - that the question was new, but it was contended, that upon principle the liability of the defendants was the same as in trespass when he who causes the wrongful act to be done, or is privy to or intermeddles with it, is responsible even without interest. On the other hand it was insisted that the giving of the bond being a lawful act, merely to indemnify the Sheriff against the consequences of a doubtful claim of property in the goods seized, and which might be the subject of legal adjudication, it could not by relation, be held to be an unlawful act. It was said that this was a mere collateral act to indemnify the Sheriff, for doing that which was prima facie his duty, but which became doubtful by the interposition of adverse claimants to the property seized, and consequently the mere execution of the indemnity bond could not be construed into a tortious conversion of the goods. It was an innocent act and as the defendants had no interest in the matter they could not be liable in this form of action. To hold sureties liable in trover under such circumstances would deter everybody from giving an indemnity in every case to abide the determination of a bona fide claim of property in goods seized by the Sheriff.

Admitting that this is an entirely new case in circumstances, and that there is no case precisely in point, yet upon principle I think the defendants are liable in trover. I apprehend that no great public mischief can arise from so holding by reason of its likelihood to deter sureties from indemnifying the Sheriff in such cases because the Sheriff need never put himself in the position of requiring an indemnity for executing writs of execution issuing out of the Court. The law has provided ample protection for him by the Interpleader Act , of which he may at all times avail himself in doubtful claims to property seized in execution. The Sheriff here has in fact sold, and the question is at whose instance he has done the act? It is clear that he would not have done so, but for the indemnity bond given by the defendants. The defendants have in fact set him in motion. They have procured the goods to be sold. They are the cause of the act, and have taken upon themselves the consequences of it. The defendants have adopted the first act of the Sheriff in seizing the goods, by giving the indemnity they have perfected the conversion by authorizing him to sell. The selling is the consummation of the conversion, and it was by the defendants that the tort was completed.

In Nicoll v. Glennie (1813) [ Nicoll v. Glennie (1813) 1 M. &S. 588, 105 E.R. 220 ] the bankrupts had first converted the goods before the bankruptcy, and they and the assigners were sued in one court jointly in trover - the latter having refused to deliver them up afterwards, but the Court held that the bankrupts' other assignees could not be sued jointly in one court there being no joint conversion. In Sir F. Buller's An Introduction to the Law relative to Trials at Nisi Prius , London, 1817, p. 41 and Rush v. Baker (1735) [ Rush v. Baker (1735) Cun. 130, 94 E.R. 1107 ] it was held that if a person sue out execution against a bankrupt and the Sheriff seize the goods and sell them, and give the money to the person suing out the execution, the assigners may bring trover against the Sheriff or the person suing out the execution - if he can be proved to be a party to the conversion by giving bond to secure the Sheriff and to making it his own act. Where the defendants are parties to the conversion - by giving a bond to secure the Sheriff, they make it their own act, Flewster v. Role (1808) [ Flewster v. Role (1808) 1 Camp. 187, 170 E.R. 924 ]. A party who gave false information as to liabilities of a man to be impressed, and thereby he is pressed, is liable in trespass and false imprisonment as he procured the act to be done. Defendants do this act at their own peril.

It appears to me that the defendants, by indemnifying the Sheriff, have set him in motion. Whether they had or had not any pecuniary interest in the matter is wholly immaterial. The money has been applied in the way they have undertaken it should be - namely to Sparke. The Sheriff might have been primarily liable, but the plaintiff has a right to claim against whom he could proceed, out of any number of privies to the conversion. The defendants were privies, and intermeddlers before the conversion took place, and the actual conversion having taken place by their incitement, I cannot distinguish this in principle from the rule in trespass, which is that all privies before the act committed are accessories. These defendants cannot be damnified by holding them liable. They have taken upon themselves to justify the act of the Sheriff with their eyes open, and with full knowledge of the circumstances. If they suffer for what they have undertaken they will have a right to resort to those for whose benefit they became surety. In the meantime, they are liable for the tortious act, by which the plaintiff's property has been wrongfully applied to the satisfaction of their principal debt.

Burton and Stephen JJ concurred.

Nonsuit set aside, and new trial granted.

Published by the Division of Law, Macquarie University