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

R. v. Lucas and others (1829) NSW Sel Cas (Dowling) 569; [1829] NSWSupC 52

bonds - Crown immunity

Supreme Court of New South Wales

Hearing, September 1829[1 ]

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

[p. 242] [The King need not assign breaches under Statute 8 & 9. W. 3. C. 11. S. 8. in an action on a bond for the non performance of covenants.]

Rex v Lucas & ors

Debt on bond in the penal sum of £900 conditioned for the building of a Gaol at Liverpool according to a tender annexed to the Court and therein specifically referred to.  Plea non est factum at the trial before Forbes CJ. at the sitting in last term, it was objected on the part of the Defendant that the Crown [p. 243] should have assigned breaches either in the Declaration or republication pursuant to the Statute 8 & 9 W. 3. C. 11. S. 8. (vide Sec 1. Chitty Pleading.504.)

The Chief Justice reserved the point and for more abundant caution directed the assessors to find the actual damage sustained by the Crown by reason of the Defendants breach of the conditions of the bond.

Sampson SG. now contended that the Crown was not bound by the Statute not being expressly named therein and he cited Bac. A 6. Tit Prerogative. E. 5.

S Stephen & Poole contra contended that the statute being general, and affecting public Justice, the King was bound by it though not expressly named therein.  They referred to 33. Henry 8 C. 39.& 4 Anne C. 16. s. 24.

Per Curiam  We think that the Statute to 8 & 9 W. 3. C. 11. S. 8. does not bind the Crown, the King not being expressly named therein.  The Court is bound to the Judicial notice of the King's privileges [p. 244] (Ld Raymond 980) one of which is that he shall not be bound by though he may take advantage of a Statute unless expressly named therein.  There are several exceptions but those exceptions prove the generality of the rule.  No injustice has been done to the Defendant in this case by not assigning breaches, for he has in fact had all the benefit of the Statute the real damage done to the Crown by the breaches of his covenants only having been assessed being thereby relived from the necessity of applying to the equitable jurisdiction by bill on petition Monstaus de droit to have the execution taken out only for the actual damage done, which would have been an additional expense in as much as the Crown pays no costs.

Rule discharged for disturbing the verdict of the Crown consents to take out execution for damage actually assessed.

Notes

[1 ] From its position in the notebook, it is likely that this hearing took place between 30 September and 3 October 1829.

Published by the Division of Law, Macquarie University