Skip to Content

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

Morris v Evernden [1832] NSWSupC 49

magistrate, action against - assault - false imprisonment - supervision of inferior courts - police, rights to arrest - arrest, limits on - transportation, magistrates' right to impose sentences of

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 18 July 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255[1 ]


[p. 81] Trespass for an assault, battery & false imprisonment.  Plea N.G.  At the trial before Stephen J. & a special Jury on the 19th June last it appeared that the Deft a magistrate of the territory, imprisoned the plf under a warrant directed the Gaoler, commanding him to receive the plf into his custody "by the directions of His Excellency the Governor until duly delivered by me, or by due course of law".  The warrant was dated 19th January 1831. - under which the plf was imprisoned for 14 days & then discharged.  The notice of action to the Deft was in these terms "You having on or about the the [sic] 23d of December last, & for 14 days subsequently wrongfully imprisoned" the plf &c "I hereby give you notice &c".  It was objected that the notice of action having erroneously stated the true time when the commencement of the plf's imprisonment took place, it was a cause of nonsuit.  The judge saved the point, and the plf had a verdict for 200£.  The Atty General had appeared for Deft

[p. 82] Macdowell now moved for a new trial on the point saved, & also on the ground that the damages were excessive.

Per Curium.  We think the notice of action is sufficiently certain, having regard to the object of the statute 24 G. 2. which was to give the magistrate an opportunity of tendering amounts.  A notice of action does not require the like certainty as a declaration.  Time is not of importance so long as the action is brot within 6 months, as here.  The true date of the imprisonment is totally immaterial. -  As to the excessiveness of damages, - this case having been tried by a special jury, they are the best judges of that matter & as there is nothing apparently outrageous in the amount, we see no ground for interfering with their verdict.

Rule refused.



[1 ] See also Sydney Herald, 21 June, 23 July 1832; Australian, 22 June 1832.  See, too,Historical Records of Australia, Series 1, Vol. 16, p. 779.

Cases such as this led to a clarification of the law of transportation: (1832) 3 Wm 4 No. 3.  This New South Wales Act diminished the magistrates' power to order transportation, replacing it with the power to sentence the person to labor in irons.  See Bourke to Goderich, 30 October 1832,Historical Records of Australia, Series 1, Vol. 16, pp 780-781, and see pp 788-789, 802-805.

For another false imprisonment case, see O'Brien v. Orr, Dowling, Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259, pp 166-192.  At p. 192, Dowling J. included a copy of his summary to the assessors: ``Dowling J.  By law a constable may apprehend any person, free or bond, engaged in his view, in a riot or breach of the peace, without warrant.  Not so after a riot or breach of the peace is over, where the party is a free subject.  Then as to the time when the Plf was taken up, had the riot proved in evidence ceased?  If it had not ceased, the apprehension was lawful without warrant.  Otherwise if the riot was over. - Supposing the evidence satisfied the assessors that the riot was not over, then was the mode of imprisonment lawful - i.e that is [sic] in confining the Plf in hand cuffs in his transit from one watchouse to the other. -  If the hand cuffs were put on for the bona fide purpose of preventing escape, then the mode & manner of the imprisonment was lawful. There was no excess to plead over to the Defts plea."  The assessors found a verdict for the defendant.

Published by the Division of Law, Macquarie University