Skip to Content

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

Bardsley v. Lockyer and Another [1829] NSWSupC 40

false imprisonment - liquor laws - supervision of inferior courts - magistrate, action against

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 13 June 1829

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 199]

[If notice of action against a justice of peace for an act done in his office, be given one month before the writ or process is served it is a sufficient compliance with the 24 G. 2. C. 44. s. 5.]

[June 13th 1829]

Bardsley v Lockyer & anor

Trespass against Magistrate for false imprisonment in committing the Plaintiff on a conviction for selling spirits without a licence.  At the trial before Dowling J on the 24th March last it was contended by the Solicitor General (Sampson) that the Defendant had not sufficient notice of action pursuant to the Statute 24 G 2. C. 44. s. 5. by which it is enacted "That no writ shall be sued out against nor any copy of process at the suit of a subject shall be served on any justice for anything done by him in the execution of his office, until notice in writing of such intended writ or process, shall have been [p. 200] delivered to him, or left at the usual place of his abode by the attorney or agent for the party who intends to sue, at least one calender month before the suing out or serving the same" - It happened that the notice of action in this case had been served on the defendants on the 28th of August; that the writ was sued out on the 27th September and served on the 24th October being nearly two months after notice of action. -   I saved the point at the request of the Solicitor General and upon the merits the Plaintiff had a verdict for 30£.[1 ]

Sampson SG. now moved to enter a nonsuit and contended in as much as one month had not elapsed from the suing of the writ and the service of it the notice of action was not conformable to the statute.

Foster & Rowe contended that if the act was read literally it would appear that the notice was abundantly sufficient, because [p. 201] it only required that the notice should be one month before the suing out or service of the process.  The word or was was [sic] to be read disjunctively and therefore the Defendants had nearly two months notice before the service of the process in this case.

Forbes CJ. clearly this part of the act maybe read disjunctively.  If the Defendants have one months notice before the service of the process that is sufficient to satisfy the requisites of the statutes.  Here they had nearly two months notice.

Dowling J concurred

Rule discharged

 

Notes

[1 ] On this, see Australian, 27 March 1829.  The "I" refers to Dowling J., whose on whose notes this report is based.

Published by the Division of Law, Macquarie University