Skip to Content

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

Ross v. Jones [1842] NSWSupC 52

fieri facias, sale at undervalue - malicious execution

Supreme Court of New South Wales

Dowling C.J., 25 February 1842

Source: Sydney Herald, 1 March 1842 [1]

This was an action on the case. The Solicitor-General and Mr. Broadhurst were for the plaintiff, and Mr. Foster and Mr. Windeyer for the defendant.

            Mr. BROADHURST opened the pleadings.

            The SOLICITOR - GENERAL stated the case, and said, that the action had been brought to recover damages which the plaintiff has sustained by reason of the defendant's having maliciously put an execution into his house and sold off his goods   on account of a debt which, it would be shown, was due from another party. The circumstances of the case were these: some time in the May of 1841, the plaintiff had taken the premises and business of parties named Vaughan and Zahiel, in Pitt-Street; and the bill of sale to the plaintiff of the stock, for a valuable consideration, was at the time executed by Messrs. Vaughan and Zahiel. The plaintiff accordingly entered upon the business, had his name painted over the door, and was in every respect the proprietor of the business. Having good credit with different merchants in Sydney, he had no difficulty in procuring supplies of goods from them to enable him to carry on his business. After the plaintiff had taken the business, the defendant, upon some asserted claim he had on the previous tenants, Messrs. Vaughan and Zahiel, sent an execution into the house on the absence of Mr. Ross at Brisbane Water, and swept away all the goods in satisfaction of this claim. It would be proved, that this execution, under the circumstances stated, had been enforced against the plaintiff's goods and property, by which he had been utterly ruined, and the jury would then consider of the damages due to him for the irreparable injury he had suffered.

            John Westmore examined by Mr. BROADHURST - Remembered a dissolution of a partnership formerly existing between Zahiel and Vaughan. A bill of sale from Zahiel to the plaintiff was put in, dated the 7th May, 1841. Possession was given to Ross under that instrument.

            Cross-examined by Mr. FOSTER - Had heard from Zahiel and Ross, at this time, that the objects of the bill of sale was the protection of the property from Zahiel's creditors. Zahiel, some time after the bill of sale, continued on the premises.

            Re - examined. - Zahiel during his stay in the house, subsequent to the bill of sale, appeared to be merely the foreman of Ross.

            Brown, the Sheriff's bailiff who levied the goods, said, that the amount of Jones's claim was £168 odd shillings. Gave direction for the sale of all the goods and chattels in the house, as being proper goods and chattels of Zahiel and Vaughan. The Sheriff was indemnified. Ross's name in large letters was painted up on the gable end of the house.

            Cross - examined by Mr. FOSTER - Found Mr. Zahiel in the house.

            John Blackman examined by Mr. BROADHURST - Remembered selling the goods and chattels on Ross's premises, lately in the occupation of Vaughan and Zahiel; the goods sold for £25 16s. 6d. : should think there must have been a considerable loss by the sale, compared with what the goods have sold for by retail.

            A painter was called to prove that Vaughan and Zahiel's name had been painted out, and Mr. Ross's name painted in.

            Charles Trumper examined by Mr. BROADHURST   - Was a hatter; had been in the service of Vaughan and Zahiel, in Pitt-street; had also continued on the same establishment after Ross took the business; Ross had always since taking the business paid witness his wages, and had employed Zahiel as his cutter-out; stock had come on the premises after Ross took the business; cloth, hats, &c., had been brought into the premises from Melville and Andrews, and from other merchants.

            Cross-examined - Would not swear that Ross's name was written over the door.

            Robert Bicknell examined by the SOLICITOR GENERAL - Recollected Ross   taking the business of Zahiel and Vaughan ; and since that event had supplied Ross with goods to the amount of about £40.

            An assignment of Zahiel's lease to Ross was also put in, and proved to have been duly executed.

            J. Giblett, examined by Mr. BROADHURST, proved, that before Ross's taking the business the names of Vaughan and Zahiel were over the door, which were painted out to make way for Ross's name, soon after his entry in May; had sold to Ross a small parcel of beaver bonnets, value twenty- five pounds; at the same time of the sale, witness called on Mr. Jones, to ask him by what right he was going to sell his (witness's) goods. Jones said something about Ross and Zahiel being partners, and that he was well advised he could sell for the debt due to him from Zahiel: witness replied, he sold to Rossalone, and Ross's name was over the door.

                    A Mr. Vaughan, Mr. Andrews, and others, proved the delivery of different parcels of goods to the plaintiff (subsequent to his taking the premises and business, of Vaughan and Zahiel,) to the amount of about £500.

            Mr. Andrews cross-examined by Mr. WINDEYER - Had never heard of any arrangement that Ross should go as clerk to Zahiel. In the latter end of June, witness received a warrant of attorney from Ross, and after the sale witness received £ 17, part of the proceeds from the Sheriff.

            Other witnesses afterwards proved that Vaughan and Zahiel had been indebted to them at the time of Ross taking the business, and that he had undertaken to liquidate, and had partly liquidated their debts. They also proved that the goods at the sale, had gone at a great sacrifice. This was the plaintiff's case.

            Mr. GODDARD, the plaintiff's attorney, stated, that Vaughan had signed notice of dissolution with Zahiel, and that a deed had been drawn in accordance with this notice. Witness thought it had been executed by Vaughan and Zahiel; the deed however when produced proved only to have been executed by Zahiel.

            Mr. FOSTER, for the defendant, submitted that the plaintiff had not made out his case. If the action had been brought in trespass, for the taking of goods, it might have been maintained; but being only in case for maliciously executing a writ, and no goods being mentioned, the plaintiff must be nonsuited.

            His HONOR decided that the case must go to the jury.

            Mr. FOSTER, for the defence, then said, that Vaighan and Zahiel had been in business as partners, and among other parties who had become their creditors, the present defendant was one. It appeared even by the deed, which had been put in, that Zahiel had conveyed all the stock-in-trade to Ross, in consideration that he would undertake to pay Zahiel's debts. No money consideration had actually passed, and it was clear, as had been said, that the bill of sale, had only been executed, in order to protect the goods from Vaughan and Zahiel's creditors. The chief ground however of the defence, as shewing that it did not lie in the plaintiff's mouth to allege that there had been a malicious execution on the premises, was this; that several days after the execution had been put in, he had written to the defendant, promising that if that execution were only delayed for a few days, he would use his best endeavours to get the defendant's demand paid; hero was a recognition of the defendant's right to make the levy, accompanied by something almost like a promise that he, the plaintiff, would be a consenting party to the sale, if it were only delayed by the defendant in accordance with the plaintiff's mouth to allege that there had been a malicious execution on the premises, was this; that several days after the execution had been put in, he had written to the defendant, promising that if that execution were only delayed for a few days, he would use his best endeavours to get the defendant's demand paid; hero was a recognition of the defendant's right to make the levy, accompanied by something almost like a promise that he, the plaintiff, would be a consenting party to the sale, if it were only delayed by the defendant in accordance with the plaintiff's proposition. These facts he, Mr. Foster, could prove by the evidence of witnesses, which would entitle his client to the verdict of the Jury.

            Mr. Holden, a clerk to the defendant, proved the note from Mr. Ross, promising as above, in consideration that defendant would consent to put off the sale.

            The Sheriff's Officer was recalled, who stated that the execution was put in on the 19th of the month, and at the request of the plaintiff the sale was postponed by the defendant. The witness had never heard Ross to his recollection assert the goods were his, or forbid the sale.

            This was the defendant's case.

            The SOLICITOR-GENERAL having replied, his HONOR summed up, and the Jury after some consultation, returned a verdict for the defendant.

            Attorney for the plaintiff, Goddard; for defendant, Carr, Rogers, and Owen.

Note

[1] See also Australian, 26 February 1842.

Published by the Division of Law, Macquarie University