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

R. v. Hughes [1827] NSWSupC 5

forgery, Spanish dollars, arrest of judgment

Supreme Court of New South Wales

Forbes C.J. and Stephen J., 12 February 1827

Source: Sydney Gazette, 14 February 1827

Cornelius Hughes convicted of forging and uttering an order on the Bank of New South Wales, purporting to bear the signature of Dr. Bowman, for 180 Spanish dollars, being placed at the bar, Mr. ROWE rose to move an arrest of judgment.[1 ]  He submitted that the indictment against the prisoner could not be supported, first, on the insufficency of the indictment itself, which should have averred that the person drawing the warrant or order mentioned in the information had an authority for drawing such warrant or order.  There was no averment in the indictment against the prisoner, that Dr. Bowman had any authority over the money or goods in question, nor that he kept any account, or had any money in the Bank of New South Wales.  In the case of the King against Clinch, in 1st Leech, p. 540, an objection was taken for the prisoner that such an averment was necessary, and that the order must appear to be in some degree compulsory on the person in possession of the goods, and the Judges held the objection valid.  There were four counts in the information against the prisoner.  The two first counts charged him with making, forging, and counterfeiting a certain warrant and order for the payment of money.  The two last counts charged the property as goods, and not as money.  The indictment was founded upon the Act of the 7th of Geo. 2d, c. 22, that was more fully explained by the 45th of Geo. 3d . 89. sec. 1 which recited the preceding statutes, and he (Mr. ROWE) contended that Spanish dollars charged in the indictment as being money, could not be presumed to be such money as was contemplated by the Legislature at the time of the passing of the Act.  The statute was most explicit as to the payment of money, and the question was, were Spanish dollars money under the statute no value having been set on them by the King, and wanting this impress.  He, therefore, contended that the indictment charging the warrant and order to be for the payment of money could not be sustained.  With respect to the two last counts charging the instrument to be for the delivery of goods, he conceived that Spanish dollars did not come within the deicription [sic] of goods contemplated by the Act.  In the case of the King against Leigh in 1st Leech, p. 52, where the prisoner was indicted under the Act of the 24th of Geo. 2, which made it felony to steal goods, wares, or merchandize above the value of forty shillings from on board any ship in a harbour or river, it was ruled that some Portugal money, which was part of the property taken, was not to be considered as coming under the description of goods, wares, or merchandize contemplated by the Act.

The Acting ATTORNEY GENERAL replied, and His Honor the CHIEF JUSTICE, after some consultation with Mr. Justice Stephen, stated that, in this case, it was the opinion of the Court, that the judgment should be arrested.  The prisoner was accordingly discharged by proclamation from the bar.

Notes

[1 ] See also Australian, 7 and 14 February 1827; Monitor, 7 February 1827; and see R. v. Riley, August 1826; R. v. Vignell, 1828.

Published by the Division of Law, Macquarie University