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

R v Forbes [1826] NSWSupC 2

perjury - security for debt - security on cattle

Supreme Court of New South Wales

Stephen J., 14 January 1826

Source: Australian, 19 January 1826

 

The King v. F.E. Forbes

This was a prosecution conducted at the instance of Mr. E. S Hall against the defendant, for having taken a false oath.[1 ]

It appeared in evidence that the prosecutor and defendant had been very intimate friends, and that various money transactions had passed between them.

Mr Hall having received advances from Mr. Eager previous to his leaving the Colony; gave him a sort of mortgage on his cattle.  Subsequently to his departure the defendant advanced further sums to him, and the mortgage deed was cancelled, and a deed of sale, of the cattle made by Mr. Hall, in the joint names of Eager and Forbes - Mr. Forbes acting in this for himself and on behalf of Mr. Eager.  A bond was executed by the defendant, giving Mr. Hall the power of redeeming the cattle, notwithstanding the deed of sale, within seven years, if within that time he could repay the sums advanced.  The cattle were then branded E.F. having been previously branded E.  Mr. Hall and defendant continuing on terms of great friendship, Mr. Hall, with the concurrence of the defendant, made several sales of the cattle, and paid over the proceeds, or part of them, to the defendant, in order to redeem the cattle according to the terms of the bond.  The defendant also contrived to make fresh advances; and at the period when the perjury was said to have been committed, according to Mr. Hall's statement he owed to Eager and Forbes perhaps about two hundred pounds, and the cattle remaining unsold were worth about £250.  The original debt amounted to about two thousand pounds, and the cattle were in proportion valuable.  The parties having quarrelled, the defendant refused to allow Mr. Hall to intermeddle with the cattle.  Mr. Hall on the other hand insisted upon having them in his possession, as the deed of sale had only been an accommodation business, and further, as the original sum for which the deed of sale had been executed was paid, the defendant had no right to consider the cattle as a security.  The defendant, however, thought otherwise, and insisted that as the deed of sale had never been cancelled or agreed to be so, so long as Mr. Hall owed money to Eager and Forbes, the defendant, Mr. Forbes had a right to hold the cattle and keep them for the debt.  He considered that he had a special property in them, and that they were only redeemable at the end of seven years.  In this state of things each party claimed the right of property, and each sought to get and keep possession of the cattle.  Among the number of them, were some working bullocks.  These were on one occasion yoked by the defendant's man at Lake Bathurst, by order of the defendant, then in Sydney, and proceeded with by him towards Sydney.  When he had arrived at Bargo, the man turned them out to feed after unyoking them; and went into a settler's house to refresh himself, and to remain all night.  Having been here a short time, a man came in and told him that Mr. Hall's man was on the look out, and intended to drive away the bullocks as soon as they were unyoked and turned loose.  Upon this the defendant's man went out to see that all was right, when he found that the bullocks had already disappeared.  He looked for them that night and next day, but could hear no tidings of them.  He then wrote to his master, the defendant, to inform him of what had happened.  In the mean time he heard where they were, and went to fetch them.  In driving them past Mr. Klensendorlff's house the latter came out, and with the assistance of others, took them from the defendant's man, telling him that he had orders from Mr. Hall to do so.  The defendant's man here met with Mr. Hall's man, and he charged him with having taken away the bullocks; and according to defendant's statement, he denied it; according, however, to the evidence of Klensendorlff, he did not deny that he had taken them away.  After these matters had then taken place, the defendant saw another bullock which had been removed from Bathurst at the instance of Mr. Hall, but unknown to defendant, who was afterwards apprised of the loss by Mr. H. Hall, at Lake Bathurst, and overseer to defendant.  This bullock, at the time defendant saw it, was in a team, attended by two strange men, who would give no account of how they became possessed of it.  The defendant accordingly followed them, and had them taken to Mr. Brooks, the Magistrate, and before him he took the oath which formed the subject of the prosecution.  The part of the affidavit set forth in the indictment was as follows:-

"And this deponent further saith, that on the night of the said 27th day of July last past, three bullocks, the property of this deponent, were FELONIOUSLY STOLEN, BY BEING DRIVEN AWAY from the place where deponent's servant, the said Robert Grocott had turned them out to feed; and this deponent further saith, that on or about the latter end of the said month of July last past, one other certain bullock, branded E F, was feloniously stolen from deponent's farm at Lake Bathurst, by being driven away in the night time, which said last mentioned bullock, and one of the said three bullocks first mentioned, this deponent has this morning seen in the custody of two men, whereupon this deponent craves the assistance of the police to apprehend the said two men, as also to restore the said bullocks to this deponent, the same being his property."

It was alleged that the defendant knew that the bullocks were not his property; and further, that he knew they were not FELONIOUSLY stolen, but that a trespass only was committed when Mr. Hall's man drove them away from Bargo, and also when the bullock was driven away from Lake Bathurst.

The Jury found him guilty of perjury in swearing that they were feloniously taken, but not in swearing that the property was his.[2 ]

 

Notes

[1 ] See also Forsyth v. Forbes, February 1826.  Later, Hall became the editor of the Monitor newspaper, which began publication on 19 May 1826: R.B. Walker, The Newspaper Press in New South Wales, 1803-1920, Sydney University Press, Sydney, 1976, p. 8.  The Sydney Gazette reported this case on 19 January 1826: W.C. Wentworth was counsel for the prosecution, and Dr Wardell for the defendant.

[2 ]On 25 July 1826, the case was back in court.  Mr Wentworth reminded the court that a rule nisi for a new trial had been issued, but the matter was not yet settled.  The application for a new trial was based on a misdirection to the jury, or that the judge's direction did not allow the jury to distinguish between trespass and felony.  (Source: Monitor, 28 July 1826.)

Published by the Division of Law, Macquarie University