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

R v M'Ara [1825] NSWSupC 34

master and servant - habeas corpus - appeal - certiorari - supervision of inferior courts - Port Macquarie

Supreme Court of New South Wales

Forbes C.J., 8 August 1825

Source: Sydney Gazette, 11 August 1825


Thomas M'Ara, a free man, sentenced by the Magistrates to be imprisoned for 3 months, and to pay a fine of £20, for absconding from his master, was brought before the Court by writ of Habeas Corpus, on the motion of Mr. Rowe, who contended that the instrument, signed by the defendant, was not valid according to the provisions of the Act of Parliament, which directs, that all contracts entered into between master and servant, shall be by indenture.  Mr. Rowe cited the case of Smith v. Best, from 1st Ses. Cases, 222, where it appeared that in an action for enticing his apprentice brought by the plaintiff, the style of the writing began, ``This Indenture," but was not indented; and it was decided, that, by the 5th of Elizabeth, c. 4, an apprentice could only be bound by indenture, and that no other instrument was valid.  The same was also laid down by Lord Kenyon in 3d Espinasse, 199, and also in 1st Bott [?] on Poor Laws, 528.  The deed then bef[o]re the Court was not executed as the Act required, and was therefore no more binding on the parties, than if the Act provided that it should be by deed, and upon the production of the contract it was a paper writing, and not under seal.  There was also another objection grounded on the committal; under the 53d section of the Act regulating the contracts between master and servant, the Magistrates have a power to punish a breach of such contract, by fine or imprisonment, but not by both; and if they exercise the power to send the party to gaol for three months, it is all they can do, and they have no right to inflict any other penalty, he therefore contended that the committal was illegal, and the prisoner entitled to his discharge.

The Court was of opinion, as it appeared upon the face of the committal, that Thomas M[`]Ara had been convicted of an act over which the Justices had jurisdiction, and received sentence thereupon, that it could not enquire into the propriety of the conviction in the manner sought.  The parties must proceed by Certiorari, which would open the merits of the case.[1 ]



[1 ] This was not the only means by which a prisoner could draw a complaint about the magistrates to the attention of the Chief Justice.  In 1825, a number of convicts at Port Macquarie petitioned Forbes C.J. with the complaint that the magistrates had, in effect, sentenced them to life at that penal settlement by ordering that they serve the remainder of their sentences, which was to say, life, there.  This was for very minor offences, they said.  The Chief Justice referred the petition to the governor.  (Source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, pp 38-41.)

Published by the Division of Law, Macquarie University