Resource | Text: Article | |
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Title | THE LAW COURTS. (1858, March 4). | |
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Source | The Age, Francis Cooke, South Melbourne, Vic, 1854 | |
Item URL | ||
Page | 6 | |
Date Issued | 4 March 1858 | |
Language | English | |
Citation | THE LAW COURTS. (1858, March 4). , The Age, 4 March 1858, 6 | |
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Resource Identifier | 65289 |
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Ashley v. Bliss
For plaintiff, the Solicitor-General and Mr Wood for defendant, Mr G. A. Stephen.
An action on replevin to recover the amount of a bond given by defendant to the sheriff for the prosecution of an action to recover damages for an excessive distress for rent made by plaintiff on one John Black, the lessee of the Theatre Royal. The action was not brought, and therefore the present action was brought to recover the amount of the bond.
In 1855, Mr John Black was the lessee of the Theatre Royal, in Bourke street, and being in default of payment on his rent, his goods were distrained, and were at once replevined under a bond for the amount of double the value of the goods, that Black would institute a suit against the landlord for excessive distraint for rent. Defendant joined in the bond to the sheriff, who endorsed it over to the landlord as his only security for the rent.
The Solicitor-General, having stated these circumstances, called Arthur Theodore Wilson, clerk to Messer’s Bennett and Taylor, who proved the signature and seal of defendant to the bond. Lewis Ellis proved the signature and seal of the Sheriff to the bond.
Edward Ashley, merchant and proprietor of the Theatre Royal, proved that £458 was due for three quarters rent at the time of the distraint. The goods distrained were worth more than the amount of rent due. Everything on the premises was seized. The bond produced was assigned to witness by the sheriff. Black brought no action against witness on this distraint, nor did he serve him with a writ.
Cross-examined by Mr G. M. Stephen, Black has not paid the rent; never promised Bliss not to hold him responsible for the bond.
Another witness was called, but his evidence was of no value.
Charles William Stuart, sheriff’s officer; Remembers the distress in question. Delivered over the goods from plaintiff’s bailiff to defendant; did so on the replevin; cannot say anything of the value of the goods.
Plaintiff’s case closed here.
Mr G. M. Stephen moved for a nonsuit on the ground that the bond being taken under a statute the terms of that statute should be strictly carried out. This act is 15 Vict., No. 2 which is a transcript of the 11 George 11 which prescribes the form of the bond which in this case is drawn up under the common law procedure act which was not passed until long after the bond had been given. He cited Jackson v. Hanson, 8 Mus., and Wells; and Edwards v. Chalin. The variance in the words of the bond cause the bond produced not to be the same as that set out on the declaration.
His Honor over-ruled the objection.
Mr Stephen addressed the jury for the defence. His Honor summed up the evidence and explained the law of the case and the jury gave a verdict for plaintiff damages £400