Skip to Content

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

Raphael v. Gore and Eagar [1818] NSWKR 7; [1818] NSWSupC 7

trover - fraud - bill of lading - anti-Semitism

Supreme Court
Field J., 24 November 1818
Source: Sydney Gazette, 28 November 1818[1]

This was an action of trover for six chests of tea, a cart, mare and harness, seized by the defendant the Provost Marshal, under an execution at the first of the defendant Eagar against one Solomon Davis, and now claimed as having been the property not of Davis, but of the plaintiff; and the question was, whether the chests of tea were fraudulently or bona fide sold by Davis to the plaintiff; for ads? to the horse and cart, even if the Court had had any doubt that they were fraudulently sold, that sale was also believed as having taken place after the delivery of the writ to the Provost Marshal. The tea was sold on the day before the delivery of the writ, and it appeared by the evidence of an Attorney's clerk who had just been employed by Davis to draw a deed of gift to the woman he lived with, that on that day the plaintiff came into Davis's shop, and the witness was called upon to draw up and witness a receipt for £52 for goods and in full of all demands, which Davis signed and gave to the plaintiff; that he saw the plaintiff pay Davis the money in Bank-notes, and that he sourced the extent of tea, and other goods, taken away by the plaintiff's ...
[rest of paragraph difficult to read but transcribed as follows] The [?] did not know what goods were included in the receipt, and it was admitted no bill of lading was made. It appeared by other evidence [?] the second day after this transaction, the plaintiff acceded [?] Davis in his shop whilst he caused his own goods to be moved, and among them the tea in question, which on its thus coming back was seized as Davis's property.
Under these circumstances, the learned Judge (Field) put it to the Court, whether this was not a mere juggle between two Jews to save as much as possible of Davis's property from the hands of his creditors, and whether that, as the Court were perfectly convinced of the fictitiousness of the sale of the horse and cart between the same parties on the second day after the delivery of the writ, and saw the one party actually succeeding the other in trade on the third day, the Court could have any doubt that the sale of the tea on the first day was equally colourable. Could the Court believe that the plaintiff did not know on that day that Davis was a falling man, and that he (the plaintiff) was to rise upon Davis's fall only two days afterwards? If they could not, then the sale of the tea must have been a pretence; that no man, who had fairly bought goods of another, to whose shop he was to remove two days afterwards, would go through the form of taking home the goods one day to bring them back the next; but thus did cunning over-reach itself! There must be a sale: witnesses were called in to see the money pass; the receipt was attested; the goods were wheeled away. The Court were convinced that those parties made a fraudulent sale the very next day; and the circumstance, [?] with the fact of the plaintiffs connexion with Davis, and benefiting by his insolvency, through upon the plaintiff both the presumption that he was equally capable of a fraudulent purchase the day before, and an adequate motive to be guilty of it. It was said that Mr. Eagar, having doubts whose was the property of the tea, had not refused to give that up; but it was for the Court, and not him, to decide upon the property; and more light might have been thrown upon the transaction by this trial that he had to guide him. At all events, the Court would not compel him to suffer for his want of contentiousness; but would for the above reasons award the defendants a general verdict.

Note

[1] The legal reasoning of Field J. may have been more transparent than that of his predecessors but so were his prejudices, as this case shows. See also Supreme Court of Civil Judicature, Judgment Rolls, 1817-1824, State Records N.S.W., 9/2217 (no. 125).

Published by the Division of Law, Macquarie University