[replevin - bail bonds - fieri facias]

In re Hart and Terry

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 3 November 1832

Dowling, Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259

[p. 200] This was a motion to have the replevin bond executed by Hart & Moore and Pass delivered up and cancelled, on the ground that the goods distrained were not in fact delivered to the tenant, and the question reserved was whether under [p. 201] the circumstances disclosed in their affidavits, we have authority in a summary way to cancel a replevin bond.  The facts, sworn to, and not devised on the part of the landlord or the sheriff were these:- In May last Terry distrained upon the affects of Hart on a farm rented by him of Terry at Cobbity for £243 for rent in arrear.  At the same time the sheriff had in his office several units of fi-fa against Hart.  On the 10th May Hart, Moore and Pass executed a replevin bond in respect of the distress, in order that the restrained affects might be given up to Hart agreeably to the statute, but instead of giving them up to him or to any person on his belief, they were retained by the sheriff under the writs of fi-fa.  Levere afterwards sold to satisfy the same.  Now it being an undisputed fact that [p. 202] the goods were not given up to the tenant, at the time the replevin bond was executed, we were called upon to order the replevin bond to be delivered up to be cancelled.  By 11 G.2 c.10 s. 23 to prevent vexations replevins of distress taken for rent, it is enacted, that the sheriff upon granting a replevin, shall take in his own name from the plf and two responsible persons as sureties, a bond in double the value of the goods distrained & conditioned for prosecuting the suit with effect & without delay, and for duly returning the goods and chattels distrained, in case a return shall be awarded, before any deliverance be made of the distress, to the tenant.  It then goes on to enact, that the sheriff may assign the bond to the avowant or landlord, in like manner as bail bonds are assigned under the 4th Anne c. 16.[1] [p. 203] "and if the bond so taken and assigned be forfeited, the avowant or person making conveyance may bring an action to recover thereupon in his own name; and the Court where such action shall be brought, may by a rule of the same Court give such relief to the parties upon such bond as may be agreeable to justice and reason; and such rule shall have the nature and affect of a defeasance to such bond."  Now suppose Terry had taken an assignment of the bond, & commenced an action thereon, might not the sureties come to the court and stay proceedings on a suggestion that the goods never having been delivered to the tenant, if a return were awarded [p. 204] the condition of the bond could not be complied with?  What would be the course most agreeable to justice & reason under such circumstances?  Why to order the bond to be delivered up to be cancelled.  This court has a summary power over ordinary bail bonds and the words in the stat. 11 G. 2. C. 19. are the same as those in the statute 8^th Anne c.16.  If a deft gives bail to the sheriff on an arrest, & refuses to deliver the body to the bail, surely the bail could not afterwards be sued upon the bond, for the breach of a condition which they were never in a state to comply with.  It appears to us that the replevin bond in this case is a nullity.  If Terry had sustained any damage by reason that [p. 205] the sheriff, instead of delivering the goods to the tenant, sold them to satisfy the executives as Hart without retaining sufficient to cover the rent in arrear, his remedy we apprehend is, certainly not upon the replevin bond, the condition upon which the bond was executed having failed, but it must be against the party by whose means he has been damnified.

Notes

[1] Marginal note in original: "Dias v Freeman 5. T.R. 195".