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

Probart v. Grose [1792] NSWKR 3; [1792] NSWSupC 3


Court of Civil Jurisdiction

Collins J.A., July 1792

Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 2/8147[1]

[31] July 1792

At a Court of Civil Jurisdiction held by order of his Excellency the Governor

Present the Judge Advocate, Rev. Richard Johnson, Richard Atkins esq. The court being duly sworn,

Thomas Probart, mate of the Atlantic store ship came before the court and preferred the annexed complaint against Francis Grose esq. for whom the court opened a session for, and the said Francis Grose esq. appearing accordingly and the complaint being read to him, and he joined these with the complainant.

William Hill, Captain in the New South Wales Corps, being sworn. Question from Mr Probart. Did you not on the 3rd day of this month hear Major Francis Grose say in the presence of this court, that there were at that time four or five people standing about the door, and 40 or 50 more, some at Parramatta and other places, which had been robbed by those two men, meaning myself and Armstrong, which would take some time to bring forth?

Answer. I heard Major Grose say something on behalf of some soldiers that had [32] got little or no property for the money they had laid out on board the ship. What particular words he uttered, I cannot take upon me to say.

Question. Will you declare upon your oath, that you did not hear Major Grose say, there were 40 or 50 more people who had been robbed by those two men?

Answer. As I have before said upon my oath, I do not recollect any particular words uttered by Major Grose that I can swear to, but remember that after what had appeared before this court, what Major Grose had said perfectly coincided with my own judgment.

Joseph Foveaux, Captain in the New South Wales being sworn. Question from Mr Probart, the same as to Captain Hill.

Answer. I was going out of the door, when Major Grose was speaking, but recollect to hearing him say there were 40 or 50 more of his people who had been tricked and cheated in the same manner.

Question from Major Grose. By the words tricking and cheating did you imagine I alluded to any thing more than the large discount which had been taken on the notes?

[33] Answer. No.

Question. Do you not recollect that what I said was in answer to a question asked by the court?

Answer. I do not. I was going out at the same time.

Mr John Palmer, Commissary, being sworn. Question from Mr Probart, the same as to former evidence.

Answer. I was not paying attention to what the Major said at the time, and do not recollect the words that passed.

Mr Archibald Armstrong, Master of the Atlantic having first declared upon oath that he had not any interests in the issue of the present time, was sworn:

Question from Mr Probart, the same as before.

Answer. Major Grose spoke to Mr Atkinson and said more of his soldiers had been robbed by those two men. I said, no sir. Major Grose said there were six or seven more at the door, and begged to call Corporal Turner in, and there were 40 or 50 more at Parramatta, which would take some time and the business must come on another day and that Mr Probart and I had made [34] an agreement between us, one to exchange the notes, and the other to sell the goods.

Question from Major Grose. Did you suppose that what I said alluded to the discount taken on the bills?

            Answer. I did.

Question from Mr Probart to Captain Hill. Did you ever hear Major Grose opine that a collusion existed between me and Mr Armstrong, the one to sell the goods and the other to exchange the notes, for the soldiers?

Answer. I have conversed with Major Grose frequently upon the duty transactions which were going on, on board the ship, according to the report, but what the words were, I do not recollect.

Lieutenant Richard Rowley of the Atlantic being sworn. Question from Mr Probart. Did you ever hear Mr Palmer say that he had heard Major Grose say words to that effect? This question not admitted to be put.

Question from Mr Probart to Mr Palmer. Did you not say that you had heard Major Grose say that there were several people who had been robbed by those two men?

[35] Answer. I recollect Mr Bowen having asked me directly after the business was over what Major Grose had said, and it being then fresh in my memory, I told him, but I have had many other things to do since, and do not now recollect.

Mr James Thompson, surgeon of the Atlantic, was sworn. Question from Mr Probart. Did you never say that Mr Bowen had told you he understood Major Grose had asserted that a collusive agreement existed between me and Mr Armstrong, of imposing on the soldiers by the one exchanging notes for them and the other selling goods?

Answer. Mr Bowen told me he had been credibly informed so and added that if so, you was an improper person to be at his table, or be entrusted with any kind of charge.

Question to Mr Probart by Major Grose. Was you not told by Mr Bowen that if you did not bring this action against me, he could not employ you in the ship?

Answer. Mr Bowen has given me to understand that if I did not clean up my character, he should not consider me as worthy of being entrusted with any charge.

Major Grose, or the complainant in declaring that he had no further witnesses to call [36] said he had no defence to make or witnesses to call.

            Verdict for the plaintiff, with one shilling damages.


[1] Major Grose accused Thomas Probart, the ship's mate, of tricking 40 or 50 of Grose's soldiers. The result was that Probart sued Grose in the colony's first defamation action. The damages awarded indicate the court's attitude to the plaintiff's conduct. Two of the soldiers also sued Probart for assault, being awarded ¿5 damages each. See Kercher, Debt, Seduction, 24


Published by the Division of Law, Macquarie University