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

Wynn v McAlister (1831) NSW Sel Cas (Dowling) 888; [1831] NSWSupC 40

magistrate, action against - supervision of inferior courts - master and servant

Supreme Court of New South Wales

Dowling J., 22 June 1831

Source: Sydney Gazette, 25 June 1831[1 ]

This was an action against the defendant, who is a magistrate, for false imprisonment.  It was stated by Mr. Wentworth plaintiff's counsel, that the plaintiff had been a fencer in the employment of Doctor Reid, and that after putting up a quantity of fences, he left Doctor Reid's employment without his consent - that after the plaintiff had so left Doctor Reid's employment, Doctor Reid brought him before the defendant, as a magistrate, who, after hearing the case, convicted the plaintiff under the Act of Council No. 9, 1828, for having absconded from Doctor Reid's employment without his consent, and sentenced him to six months imprisonment, and a forfeiture of any wages due to him.

The plaintiff's counsel gave in evidence a notice of action served on the defendant on the 21st of March, and the summons in this cause, which issued on the 7th March, to which the defendant's attorney, on the 23d March, undertook to appear.  Plaintiff's counsel were about to produce other evidence, when the defendant's counsel objected to the case being gone into on the ground that the plaintiff had not complied with the Act of 24 Geo. III. cap. 44, which enacts, ``That no writ shall be sued out against, or served upon, any justice of the peace, for any thing done by him in the execution of his duty, unless notice, in writing, of such intended writ or process shall have been served upon him by the attorney or agent for the party who intends to sue, at least one calendar month before suing out or serving the same."  It appeared that the writ or summons in this cause had issued on the 7th of March, but that the notice of action was not served until the 21st of March, and that the undertaking to appear by the defendant's attorney, was on the 23d of April; and defendant's counsel contended that the notice should have been served a month before the issuing of the summons.

For the plaintiff it was relied upon, that as the service of the summons was on the 23d of April, a month after notice, the Act was complied with; but the learned Judge being of opinion that the notice should have been given before the summons issued, and that not being the case here, non-suited the plaintiff.

Counsel for the plaintiff, Mr. Wentworth and Mr. Keith; for the defendant, Dr. Wardell, Mr. Therry, and Messrs. C and D. Chambers.


[1 ] See also Australian, 24 June 1831; Sydney Herald, 4 July 1831; Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 68.  In the latter, Dowling J. recorded the principle as follows: "Notice of Action to a JP. that one month after the same was served he would be served with a summons "To be sued out" is not complied with by proving the service of a summons which had been sued out before the notice of action was dated and served."

See also Ex parte Wynn, 1831.

Published by the Division of Law, Macquarie University