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

R v Madden [1826] NSWSupC 1

promissory notes - Spanish dollars - currency - forgery

Supreme Court of New South Wales

Stephen J., January 1826

Source: Sydney Gazette, 4 February 1826

 

A man, named Thomas Madden, was tried at the Criminal Court last week, for forging and uttering a counterfeit promissory note, purporting to bear the endorsement of Sir John Jamison, for the payment of a sum of money in Spanish dollars, with an intent to defraud Sir John Jamison, and also to defraud the firm of Cooper and Levey.  An objection was taken by the prisoner's Counsel, W.C. Wentworth, Esq. that Spanish dollars did not come within the provisions of the Act of Parliament, which makes the forging of all instruments for the payment of money, a capital felony.  The objection was admitted as valid by the Learned Judge (Stephen) and the prisoner was acquitted.  This not being the first circumstance of the kind, by many, which has lately taken place, a few days having only elapsed since an arrest of judgment was had on the same grounds, it would appear almost imperative on the Colonial Legislature to take the subject into consideration, for the purpose of legalizing so material a branch of the circulating medium.  The Spanish dollar, notwithstanding the contemplated return of sterling considerations, must for a long time form a considerable portion of the currency of the Colony, and, as the law exists, the merchant, or any other individual who may be induced to give his property on bills, and who is thereby liable to the risk of forgery, has no means of redress, in the event of his security being counterfeit.  Such a circumstance is therefore worthy the attention of the Colonial Government, as an Act of Council would at once put the Spanish dollar in this matter on a par with sterling or coin of the Realm in this Colony, and thereby prevent a recurrence of such a species of fraud, which otherwise is likely to become the more general, from the publicity which the decisions of the Courts of Law give to the fact, that a charge of forgery will not lie for counterfeiting an instrument for the payment of Spanish dollars.[1 ]

 

Notes

[1 ]On 5 February 1827, Cornelius Hughes was found guilty of forging and uttering an order payable in 180 Spanish dollars.  This, too, led to a motion in arrest of judgment because the order was for dollars.  (Source: Australian, 7 February 1827.)  The same applied in cases of robbery of promissory notes payable in Spanish dollars: see R. v. Moore and Reilly, September 1826.

On the history of currency in New South Wales, see S.J. Butlin, The Foundations of the Australian Monetary System 1788-1851, Sydney University Press, Sydney, 1953, reprinted 1968; and on the legal complexities concerning promissory notes and other currencies in the early years of the colony, see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 131-145.

Published by the Division of Law, Macquarie University