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

Blackman v MacVitie (1830) NSW Sel Cas (Dowling) 368; [1830] NSWSupC 20

promissory note, defence that stolen, money laundering

Supreme Court of New South Wales

Dowling J., 19 March 1830

Source: Australian, 24 March 1830

 

JURY TRIAL.

SUPREME COURT.

friday.

Mr. Justice Dowling was the sitting Judge to day when a special Jury was sworn consisting of Messrs Philips, (Foreman) D. Cooper, Rapsey, Wilson, Marsden, Terry, Symonds, Cohen, Marr, King, Rickards, and Farmer.[1 ]

BLACKMAN v. MAC VITIE.  This was an action of assumpsit brought to recover the sum of £309 in notes of the Bank of Australia, refused on grounds which will be seen in evidence; defendant pleaded the general issue.

Dr. Wardell, Mr. Stephen, and Mr. Keith appeared for the plaintiff; and Messrs Wentworth, Rowe, and Moore for the defendant.

T. MAC VITIE, Esq. examined. - I am managing director of the Bank of Australia, (notes produced) I have seen these notes before; he had been refused payment of these notes.

Crossexamined.  They were refused on very strong grounds of suspicion that they were stolen notes.

Re-examined. --- Suspicion was entertained of all parties holding these notes; and of the plaintiff, because it was reported he was a man of no property; when Magistrates certified and signed the notes they were paid; instructions were given to Magistrates in various districts, because they were supposed to be acquainted with the character of various parties possessing any such notes; had an affidavit as to the mode of their getting in the parties possession been sent with these notes they would have been paid.

A. Bell Esq  I am a Magistrate residing at Windsor, (paper produced) I remember the cause for which this was written; it is a certificate which enabled parties to get their notes paid at the Bank; I received instructions from the Bank to take up notes and give cheques after the robbery at the Bank; this is not a cheque; I did not give plaintiff a cheque because I left it to the option of the Bank to pay these notes; I did not give Blackman to understand that I deviated from the usual course; I had suspicion; I had orders to get in all the old notes and give cheques for them; I do not recollect any instructions to take affidavits; there were instances in which I did take them; I don't recollect taking one of Blackman; I believe I gave cheques in every instance but this; I think if there had been an affidavit it would have been sent to the Bank, in consequence of the largeness of the sum; I gave some information to the Directors; I sent a messenger express with the notes to Sydney.

Crossexamined.  Although I gave the certificate, I had strong grounds of suspicion; a long period elapsed from the time of the Bank robbery till the notes were presented; Blackman lived in Windsor during that time and might have presented them; I was at home at the time of the robbery, but on my return, hearing of it, I sent to Blackman, who I understood had just returned from Sydney, and he told me that he had seen the place where the robbery was committed; some notes he had with him he said he had found great difficulty in getting exchanged, adding he would take care to receive no more of them; the plaintiff stated he had but a few of the notes; he made an affidavit wherein he stated that he had had some notes for twelve months, and the last he obtained by gambling at the Sydney races; the circumstance of his coming to me in so short a time with so large an amount was a ground of suspicion; he keeps a well established house, but I should think his receipts moderate.

Reexamined.  I do not know much about his affairs; I believe I attended the Parramatta Races; I know Scratch the Windsor Blade's horse; I know some of them betted very high; I do not remember hearing they cleared out the Sydney folks.

Dr. Wardell here rose, and said that he did not consider himself bound to prove the considerations for these notes, and therefore he closed his case.

Mr. Wentworth then addressed the Court for the defendant, and called

Mr. Peter Gardener.  I am teller at the Bank of Australia, and was so in the year, 1828; the Bank was robbed between the 13th and 15th of Sept. to the amount of about 12,000l; every possible means were taken to acquaint the public, (letter produced) I remember this communication coming to the Bank on the 28th, October, by a Mr. Johnson; the plaintiff, came himself on the 28th, in the morning; he was shown to the board which were sitting; when asked where he obtained the notes, he said that he had about 100l. of them in his house for upwards of twelve months, and the remainder he won at a horse race; he said he could tell from whom he had any of them; I remarked that was an extraordinary circumstance; he persisted that he could not point out the parties from whom he had to the notes; he was asked why he did not present them sooner; he said it might not have been convenient for the Bank to have paid 300l. in silver; I picked out some of the notes which I knew had not been out of the Bank in July, but which he said he took in July at the races.

Crossexamined.  I cannot swear the notes presented by Mr. Blackman were stolen.

Reexamined. The first two days after the robbery there were about 8000l. exchanged, and in the first week about 20,000l.; my impression is the notes now before the Court are stolen notes.

John Davies.  I know Blackman, about four days before I heard of the robbery he was at my house, he said he wanted me to lend him a 100l. I told him I had none at home; he offered to sell me some pork at 8d. or 9d. per lb.

Crossexamined.  He did not want to sacrifice his pork.

Several other witnesses were then called to prove that the defendant wished to borrow money of them.  Dr. Wardell having addressed the Court at some length, the learned Judge summed up, and the Jury retiring for some minutes returned a verdict for the defendant.

The Judge then said that in the discharge of his public duty, he must commit the plaintiff to Jail.  The plaintiff was accordingly taken into custody and committed.

 

Dowling J., 19 March 1830

Source: Dowling, Select Cases, Archives Office of New South Wales

2/3462

[p. 288]

Where a Plaintiff took notes of the Bank of Australia, suspected to be stolen, after a robbery had been committed on the Bank, and knowing of such robbery, it is for the Jury to determine whether he used due caution in taking them under circumstances that ought to have excited the suspicion of a prudent and careful man.

 

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 33, Archives Office of New South Wales, 2/3216, p. 55

 

[p. 98]  Dowling J summed up the case in substance as follows: -

The general rule of law is, that bank notes or bills, drafts on bankers, bills of exchange, or promissory notes, either payable, to order, or indorsed in blank or payable to bearer, when taken bonafide, & for a valuable consideration, pass by mere delivery, and vest a right thereto in the transferred, without regard to the title or want of title in the person transferring them, (a) [Wookey v Pole 4 B 2 A 9 Miller v Race 1 Burn 452 Grant v Vaugham 2 Burn 1516  Peacock be Phodes Dong 636 Gordier b Meilville 3 B & C 45.]  But in these cases it is a question of fact for the jury, under all the circumstances of the case, whether the Bill &c has been taken bona fide or not, & whether due & reasonable caution has been used by the person taking it. (b) [Gills v Cobitt 3 B & C 477 Egan v Wrelfall 5 D & B 326 Down v Halling 4 B&C 330  Snow v Peacock 3 Bing 406 Snow v Latham 2. C & P 314  Beckwith v Corral 3 Bing 444 2C & p. 261.]  The question for consideration in this case is whether Plf has of possession of the Bank notes now in dispute under such circumstances [p. 99] as will entitle him to recover the amount against the Deft.  If you are of opinion that the Plf in this case did not get possession of these notes bona fide & did not exercise due and reasonable caution in taking them, or if you think that the Plf took them under circumstances which ought to have excited the suspicion of a prudent and careful man, then you will be warranted in finding a verdict for the Deft.  This is a case of considerable importance to both parties.  To the Plf it is of twofold importance; first in account of value; & secondly in respect of his character which to a certain degree is impeached in this transactions.  It is also of importance to the Deft as Managing Director of the Bank of Australia, inasmuch as it is his bounden duty to protect the interests of a large body of proprietors & persons interested in the concerns of that institution. No apology is necessary, I apprehend for the defence made to this action, if it is consicutairs [?].  The question is whether the defence set up is well founded.  It is very true gentlemen, that you have no distinct proof that these identical notes were stolen from the Bank of Australia. Not one of them can be identified as such; but it appears to me under the circumstances of this case that you may reasonably draw the inference that they were part of the notes stolen from the Bank of Australia in the month of September 1829.  There can be no doubt that the deft once had a property in [p. 100] these notes because they were originally made by the bank.  As at present advised I am of opinion that it is not incumbent on the deft to shew how these identical notes got out of their hands, but that after the evidence which has been produced it was the duty of the Plf to have shewn that he had obtained them honestly and bona fide.  This is not like the case of a banker resisting the payment of his notes in the absence of all round of suspicion that they had been fairly issued in the due & regular course of business. - We have the undisputed fact that in the month of September 1829 the Bank of Australia was robbed of their notes to the amount of 12,000 £ - some of which were of the denomination of those now given in evidence as coming from the hands of the Plf.  It is also undisputed that the notes now produced were presented for payment by the plf about six weeks after the robbery.  These facts are in my opinion sufficient to cast upon the Plf the onus of shewing consideration for the notes & that they came into his hands in the regular course of business, or in any other way consistent with a lawful possession.  After the lapse of so much time before these notes were presented, I think it is incumbent, under all the circumstances of this case, on the holder to shew that the parties from whom he took them had a good title to them.  It is unnecessary to lay [p. 101] down any general rule upon this subject.  Suppose a merchant loses a bill of Exchange or a check out of a private drawer, it might be impossible for him to give evidence to shew how he lost it, and yet if the argument urged on the present occasion were to prevail, in such a case it would be absolutely necessary for a party who brought his action to recover his own property, to shew the mode by which it passed out of his hands.  It appears to me that the Defts having shewn the property in these notes to have been once in them, it was incumbent on the Plf who had taken them under the circumstances proved on his own shewing, to make out that the party or parties from whom he took them had a good title to them (a) [Down v Halling 4 B & C 334.]

The question for your determination is whether you gentlemen, attending to the evidence adduced on both sides, can say upon your solemn oaths, that the Plf had obtained possession of these notes lawfully, honestly and bona fide.  If you think he did he will be entitled to recover, but if not, the deft will be entitled to a verdict.

The circumstances relied upon by the deft to shew that he has not a good title to the notes are these: - Immediately after the robbery of the bank the Plf is in Sydney.  Notice that the bank has been robbed is proclaimed all over the town. [P. 102] The Plf upon his return to Windsor informs Mr Bell the magistrate that he had been down to the bank to view the place where the robbery had been committed; that he went in company of one of the bank clerks; that he had a few of the notes by him (3 or 4 certainly under 10) which he had difficulty in getting exchanged, and added that he would take great care not to take any of the old notes.  Evidence to this effect is also given by the witness Johnson who proved that within a day or two after the Plf returned from Sydney in September, he said there was a deal of fuss about the notes, some would take them, others would not;- that he had a few by him in his house that his wide had taken in his absence, and he should take no more.  To the same witness he said that he had seen the notices posted in Sydney respecting the Bank robbery.  So far, if you believe the witnesses, the Plf knew of the robbery immediately after it took place, - that he experienced difficulty in getting rid of a few of the old notes in his possession - that he had then only a few in his house, & that he expressed his determination not to take any more.  The next point relied upon as shewing that the Plf had not a lawful possession of these notes is, that very shortly before the robbery was known, he is very much in want of money.  He is anxious to borrow 100 £ of John Davies at the enormous [p. 103] sacrifice of 20 £ with a mortgage on his house.  He in fact borrows a 22 £ note3 of Johnson which has then 4 months to run, representing himself to be pressed for money. To another witness named still he makes a like representation. Here then we have a distressed man making shift to raise money for a particular purpose.  Be a sudden soon after the robbery is however, we have this poor man purchasing land near Windsor, and talking of lending money to his mother to purchase a house.  Again abt. 6 weeks after the robbery we have this same distressed man presenting Bank notes to the amount of 306 £ for payment, alleging as an excuse for not presenting them sooner, that he was unwilling to distress the bank in raising so much silver coin as would be necessary to pay them!  His account to Mr Bell & Mr Cox , & to the Bank Directors of the manner in which he came possessed of the notes, is somewhat singular, and when placed in contrast with his knowledge of the robbery immediately after it took place - his declaration then that he would take none of the old notes, that he had then only a few of them by him - his anxiety to borrow money, and the lateness of the time at which he presents them for payment, and the reason he gives for abstaining from presenting them sooner, it is for you to say whether it is satisfactory.  Before the Magistrates, & the Directors he says he has had 100 £ worth in his possession for [p. 104] 12 months before, and that the remainder (206) with the exception of 9 one pound notes which he took after the robbery, he had won a the Sydney & Parramatta races in July preceding.  Now the whole of this statement could not possibly be true, because if you believe Mr Gardiner, 4 of the 5 £ notes presented to him were not taken into the Banking account, and were not in fact notes until the month of August & September; and the same observation applies to 8 other notes of smaller denomination.  If the statement of the Plf were really true it is difficult to conceive why he does not bring some person forwards to shew that he had 100 £ of these notes for a 12 month before in his house, and why he does not bring forward some one persons at least to shew that he had won nearly 200 £ at the races. If he had this money so long, why need he be borrowing 100 £ at the loss of 20£ or the 22 £  note of hand which had four months to run?  It is also remarkable that after the robbery he is scrupulous in noting the persons of whom he takes notes - for he is able to trace 9 - & to the amount of these 9 the Deft has paid money into Court - [p. 105] If after all these circumstances you can come to the conclusion that this Plf had a real, a bona fide, and an honest possession of these notes, why then he is entitled to your verdict & you will say so accordingly, but if on the other hand you think, (laying aside the statement he gave of the manner in which he came possessed of the notes) that he took them after the robbery, & did not, with a knowledge that the bank had been robbed, use due & reasonable caution in taking them, but took them under circumstances which ought to have exited the suspicion of a prudent & careful man, then the Deft is entitled to your verdict.

The Jury found for the Deft.

 

Notes

[1 ] In the usual case, trial was by judge and two magistrates, sitting as assessors.  However either side could apply for trial by jury under s. 8, (1828) 9 Geo. 4 c. 83, the matter then being in the discretion of the court.  Blackman applied for jury trial on the basis that the greater number of magistrates from whom assessors were selected were bank directors or proprietors: Sydney Gazette, 2 March 1830.  See also Hall v. Rossi, 1830, on the discretion to award trial by jury.

Published by the Division of Law, Macquarie University