[civil procedure – summons, contents of – Sheriff, appointment of]

Humphreys v. Macquoid

Supreme Court of New South Wales

Dowling C.J., March 1841

Source: Sydney Herald, 16 March 1841

RULE NISI -- HUMPHREYS V. MACQUOID[1]. - In this case, in which a rule nisi had been granted on the preceding banco day when Mr. Windeyer moved that this case should be set down for trial at Maitland, as the defendant’s servants had refused to serve the plaintiff’s summonses on the necessary witnesses in order to enable him to make out his case, because he, defendant, was the High Sheriff of the Colony, also the Jurat was described in numbers, and that the addition to Mr. Blake, late under sheriff, and that to the name of Mr. John Staple, under sheriff, were incomplete inasmuch as neither of these additions specified the degree, nor set out the locality where the one had been under sheriff or of which the other was at present under sheriff, and that although Mr. Staple’s residence was described as being in Sydney, for anything that appeared to the contrary they might have been under sheriffs of some other colony, or even of some part in England, - he now applied to have the rule made absolute. The Court held that the additions were sufficient for the purposes for which the Court had ordered them. Mr. Foster opposed the rule, on the ground that the venue had originally been laid in Sydney, also because the plaintiff had such a number of friends and acquaintances in Maitland, that it was not likely that he, the defendant, could safely go to trial under such circumstances there, also because there was no direct evidence that the expense would be greater by trying the cased in Sydney or at Berrima; also because a special jury could not be found in Maitland to try the case. It was also contended that the application should not be granted as the defendant had not put in the usual affidavits, and finally because there would be great public inconvenience occasioned by the production of the Fi fa book and other documents at Maitland. Also because the defendant had discharged the individual Kingsmill, through whose negligence the cause of the action had arisen. The Chief Justice said that the Court in administrating justice could not pay any respect to the persons; every man a right to have his case tried at the nearest point to his residence, and as the plaintiff had satisfied the Court that the cause of trial had arisen in Maitland, and especially as the plaintiff had offered to admit attested copies or secondary evidence of such books and documents as might be necessary on the trial of this cause at Maitland; it was the opinion of the Court that the plaintiff had made out a case to have the venue changed; besides, as the defendant had the summoning of the jury who would try the case, there would be but little danger of the case not being as fairly tried in Maitland as it could be in Sydney, besides which the Court felt it to be its duty to look strictly into the grounds on which it was sought to retain this case for trial in Sydney, as if the objection of the paucity of jurors to try this cause was admitted it would be the means of a opening door for objecting to any cause whatever being tried in the circuit courts. The case was then ordered to be tried in Maitland.

Notes