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

R. v. Biggers; Jones v. Biggers [1805] NSWKR 1; [1804] NSWSupC 1

wheat, quality - larceny

Court of Criminal Jurisdiction

Atkins J.A., 22 February 1805

Source: Sydney Gazette, 24 February 1805, 3 [1]

At 10 o'clock the court assembled, and proceeded to the trial, first of Mr Thomas Biggers, on a charge instituted by Thomas Jones, of Seven Hills, of having forcibly and feloniously taken from him several bushels of wheat his property. He then proceeded to set forth, that the prisoner was indebted to him to the amount of eight bushels of wheat, which when at Hawkesbury he called for. The prisoner gave him an order, requiring James Calvert to deliver him said quantity from the granary. That when he produced the order he accompanied Calvert into the granary; where, after the quantity was measured into four bags, he objected to the quality, upon which Calvert [lent] him, and shortly after returned with the prisoner who commanded him to lay down one of the bags, which he was in the act of removing. That upon his refusal to do so, and threatening any man who should attempt to take it from him, the prisoner said "he was that man", and kept his word accordingly.

Upon cross-examination by the Judge Advocate, he acknowledged that the prisoner had called at his house some short time after on his way to Sydney, and desired to see him, but denying himself, he desired one of his, the prosecutor's, servants to inform his master that the wheat was then ready for him. He was positive, he said, as to the wheat having been regularly delivered to him, and in his charge, for that Calvert had put it out of the granary, and before he went away either locked or bolted the doors, of which he was positive.

James Calvert deposed, that being directed by Mr Biggers to issue eight bushels of wheat to Mr Thomas Jones, the prosecutor, he complied, by measuring into four bags two bushels each. That when one, or two of these at most, were put outside for delivery, Jones took up a handful of the grain, objected to the quality, and putting this small sample into his waistcoat pocket, declared a determination of preferring a complaint. That the deponent, conceiving it his duty to represent this to Biggers, who was not more than 200 yards distant, mentioned his intention, and requested Jones to await his return, at the same time leaving the door unfastened by either lock or bolt. When the prisoner heard that the wheat was objected to, he desired that opponent not to part with it, as it was by no means his with that the prosecutor should receive it. But during his absence it had been removed, and from hence arose the altercation that ensued.

This evidence being gone through, the court cleared, and when returned, the Judge Advocate acquainted the prisoner that any defence from him was dispensed with, as unnecessary; and the opinion of the court was, that the prosecution had been instituted from motives of private malice, and not for the ends of public justice and equity. He was therefore acquitted, and might at any time receive a copy of his indictment.


Source: Sydney Gazette, 7 April 1805

Last Thursday sennight an action was brought before the court by Mr Thomas Biggers against Mr Jones of Seven Hills. It was brought to recover damages for a false accusation exhibited by the defendant before a Court of Criminal Jurisdiction on the 22nd of February last, wherein as prosecutor he failed of adducing any evidence whatever in support of the charge, and in consequence of which the court thought proper to declare it to have been set up in malice, and to order that the prisoner (now the plaintiff) should be furnished with a copy of his indictment. The plaintiff opened his case by a representation to the court, expatiating on the ruinous consequences that might have accrued to him from the charge made against him by the defendant; his holding a situation of much respectability and emolument under a gentlemen, upon whose good opinion depended the permanent subsistence of his family; and calling to mind at the same time the dreadful shock his feelings must have sustained from the very breath of an aspersion which could barely whisper a possibility of that criminality which the defendant had openly proclaimed him capable of, and had even bound himself to prove under the solemn engagement of an oath before a court, the members of which, happily for himself, were not unacquainted with the general character he had for many years supported in this colony. He should call evidence, he hoped to the satisfaction of the court, that the prosecution against him was set up in motives of malice, with intention to injure his character, and to deprive him of the respectable and eligible situation he held, and to rank him in society as a depraved and unworthy member. He had formally applied to a magistrate, and obtained a warrant for his apprehension by no other possible means than by misrepresentation. He had endeavoured to work his ruin by coming forward before a criminal court with a charge, the true motives of which were happily seen through, and he doubted not it would be made clearly to appear to this, as it had been to the former court, the property of which he swore himself robbed had never been given into his possession, but by himself in the first instance taken away without any authority for that purpose.

            So powerfully, he added, did the charge set up against him operate upon his mind, that notwithstanding the very distinguishing mark of censure shewed to the defendant by the Court of Criminal Jurisdiction, whose verdict he acknowledged sufficient to remove every doubt, had any such been entertained of his innocence, yet he could not forbear to bring the present action, as essential both to his character and the ends of public justice, and immeasurable as must have been his damage had not the malignant designs of the defendant failed, yet with one [decision] and respect he should now lay his damages at ¿500.

            The plaintiff, grounding his case generally on the decision of the criminal court, confined his evidence [nearly] to that adduced before it, which decidedly went to prove that the defendant had embraced the opportunity of the person's absence who had measured the wheat but not delivered it, to take it away from the granary, and consequently that he had acted illegally in so doing. That he, the plaintiff, had given positive directions by no means to suffer the defendant to take the wheat, as he had been informed by the person who measured it that he had objected to the quality, and that what he had done, theretofore, in taking it back, proceeded from an express intention of making the payment in such as would not admit objection as soon as it could be threshed.

            The gentleman whose Hawkesbury concerns the plaintiff holds in charge to a considerable amount declared that notwithstanding the good opinion he had ever entertained of him, that had there appeared any ground for such an accumulation, he most certainly should have withdrawn every portion of confidence from him, and appointed another to his situation.

            The defendant insisted, on the other hand, that he had not been induced by any insidious motive to exhibit the charge alluded to, but that he was actuated by a consciousness that he was doing aright, as he considered the wheat to have been duly delivered by the removal out of the granary and the doors being closed (neither of which assertions, however, was supported by evidence). On the contrary the witnesses called and interrogated by himself tended conspicuously to his extreme embarrassment; and to set the case of his opponent in the clearest point of view that could possibly have been required. Nor in fact did he appear to derive any advantage from any other consideration than that of his character being that of an honest man, never remarkable for a litigious inclination, and at all times active in rendering any service he was capable of to the concerns of which the plaintiff had the management. He submissively prayed, therefore, that the court would impute his error, should it appear to them that he had erred, to a want of information rather than to a badness of heart.

            A verdict was returned to the plaintiff, damages ¿50, which he immediately tendered as a donation to the Orphan Institution.


[1] Thomas Biggers frequently appeared before the courts, often as defendant concerning violent conflicts. But as this case shows, he was not always in the wrong.

See also in State Records N.S.W., Court of Criminal Jurisdiction, Minutes of Proceedings, February 1801 to December 1808, 5/1149, p. 215; Court of Criminal Jurisdiction, Indictments, Informations and Related Papers, 1796-1815, 5/1145, pp 253 and 257. And see B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 101-102.

Published by the Division of Law, Macquarie University