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

R v Hancock [1835] NSWSupC 9

succession, fraud - felony attaint - perjury - trust, breach of

Supreme Court of New South Wales

Burton J., 14 February 1835

Source: Sydney Gazette, 17 February 1835

(Before Mr. Justice Burton, and a Military Jury.)

Robert Hancock, publican, George-street, appeared on his bail bond, to answer a charge of perjury preferred against him by Deering and others for false allegations in an answer in chancery, to the effect that he did not know or believe one James Deering had any claim to two houses in Castlereagh-street.

Counsel for the plaintiff, Roger Therry Esq., Attorney, Mr G.R. Nicholls.

Counsel for the defendant, Messrs. Wentworth, Foster and Sydney Stephen.

Mr Therry opened the case.

Mr. Gurner, sworn- I am chief clerk in the Supreme Court; a bill in chancery was filed by Mr Francis Stephen, Deering and others v. Hancock.

G. R. Nicholls, sworn - I know defendant; this is his hand-writing; James Deering called on me in April 1834, about some property left him by his mother in trust; I wrote a letter to Andrew Ball and received an answer some time in May 1834; I afterwards called and said there was a deed of grant in his name for the property of the Deerings and asked him to give it me as the Attorney for them; he said he would call on me at the office, but he did not; I again went to Hancock's, where Ball was living; Hancock said he was not in, and asked me my business; I told him I wanted the grant, and 5 that Ball was the only executor of the children and that I wanted to prepare a declaration of trust; I then went away; in a few days after this Ball called upon me, and said young Deering would get all; I told Ball I would compel him to give up the grant; I am sure defendant knew this property belonged to Deering's family.

Cross-examined by Mr. Wentworth  -  This conversation took place before Ball's death; when I told defendant I was going to be prepare a declaration of trust, I don't know that he understood me. people

James Deering, sworn - I know the defendant; I knew the late Mr. Ball; I heard defendant ask Andrew Ball if he knew whether I meant to sell the premises, in Castlereagh-street when I came of age; I have now possession of them; I am certain defendant knew I had a claim to the premises; defendant wants to claim them now; he said he gave £150 for them, and when I once told  defendant the premises were ours, he said well if you know it, I don't want to know it.

Cross-examined by Mr. Wentworth  -  I am not certain how long ago it is since this conversation took place; I have possession of the premises; I claim them as heir at law of my mother; I don't know where my father is; I heard of him about 4 years ago; my mother died in the year 1827.

Henry Ball, sworn - I am the brother of the late Andrew Ball; defendant and Andrew lived together some time; I have often heard Andrew say, he was executor to the Deerings; Hancock once told me the children of Deering had no property; Ball used to receive the rents of the premises in Castlereagh-street, for the children, and I have no doubt he made away with a great part of it; I never heard Hancock say Ball was drinking the money away.

Mr Greenstead, sworn  up - I know the premises belonging to the Deering family in Castlereagh-street; I never heard Andrew Ball say the premises were his; I know defendant; I once advised him to receive the rent for the Deerings, and not let Ball squander the money away; defendant has frequently told me  the premises in question belonged to the Deering family; I have seen one of the tenants come and pay money at Hancock's house, and the money was put in the till.

Cross-examined by Mr. Wentworth. - I have frequently seen Ball squander the rents of the premises away, and I have as frequently entreated Hancock to receive the rents himself, and put the money away for the benefit of Deering's children; I lived with Hancock about 12 months; Ball lived there too, but I left Hancock's long before Ball died; Ball wished to see me before he died, but Hancock would not allow me to be admitted.

Re-examined by a Mr. Therry - Hancock and I frequently remarked on Ball's spending the money he received for the rent of Deering's houses.

Richard Deering sworn - I am 17 years old; I am a party to the Bill in Chancery; I have lived in one of the houses in question with my mother; Andrew Ball received the rents of the said houses after my mother's death; my sister sometimes received the rent; I remember Ball once receiving the rents and getting drunk with the money; I know of no person claiming the property except defendant.

Cross-examined by Mr. Stephen - Andrew Ball paid for my schooling; Mr. Freeman told me that Ball paid  for my schooling out of the rents.

Mr. Parry Long sworn - I am clerk took Mr. Nichols, and was so in May last; I have called upon defendant three or four times; I saw Andrew Ball there; the occasion of my visit was relative to a grant of land belonging to the Deerings; defendant asked me what I came about, and I told him  I wanted the grant of Deering's premises; he replied if James Deering had the grant, the rest of the children would get nothing; he said Ball had recived the rents to support the children, and also that he himself had partly supported them.

Cross-examined by Mr. Wentworth - This was only a casual application to Hancock; I went to see Mr. Ball, not Hancock; I went to receive the grant on behalf of James Deering, as the heir at law, and not on behalf of the children.

Jane Dixon sworn - I lived in Castlereagh-street, and paid the rent to one Andrew Ball; I understood  the house belonged to Deering; I never heard that the house belonged to any one else; a little girl used to come for the rent, but never gave a receipt.

Cross-examsned by Mr. Wentworth - I believe Mrs. Deering was the lawful wife of Mr. Deering; I always understood so.

Mr. Charles Smith sworn - I am a butcher, and lived in George-street; I know the defendant, at least the prisoner at the bar; on the 17th  of July I was called in to defendant's house to see Andrew Ball, who was on the point of death; I went and was shewn into the back room; as I passed into the room I saw a man named Oldfield writing in another room; I saw Andrew Ball, he was quite senseless; on the next morning Ball died; I went over to Hancock's to see the corpse; defendant and I had been at variance, but at this time we shook hands and were friends; he then told me he had bought the property in question of Andrew Ball; I said, "why it belongs to Deering's children; never mind that," said he, "here's the grant, and he read it to me; I said, "Andrew Ball has no right to lift that grant, unless he did it under false colors;" I then got angry and went away; Andrew Ball lived with defendant four or five years I always understood he was one of the trustees for the children of Deering; I one time spoke to a Hancock.

Cross-examined by Mr. Wentworth - I am the main stay of this prosecution; and have guaranteed the payment of the law expenses; I have done so merely from friendship for the children of Deering; I and the defendant had a quarrel through some words his wife used about my wife, but we made that up; I had another quarrel with Hancock, which was the time you were engaged on one side; we had a blow up in the street, and I think he would have struck me, if he hadn't been afraid; I am anxious that the children should have justice; I bear the defendant no animosity; I prevented him from getting bail, as far as it lay in my power, when he was committed at the Police-office to take his trial for perjury; one of his bail named Reynolds told me that perjury was nothing, he had been tried twice for it himself; I did say I would give £1,000 sooner than the children should be deprived of their rights; and so I will, for if Hancock gets acquitted this time I'll follow him up; my conscience guides me, and whilst I am in this box, I am determined to speak nothing but the truth; I am sure I went to see Andrew Ball on the 17th of July; am sure I saw Oldfield writing, and that Hancock told me he had done the deed for the property of the Deering's; I can't say what is become of Deering, but I understood he is at one of the penal settlements; I cannot swear, but I believe Mrs. Deering was his lawful wife; I know her well, but I never saw Deering above once in my life; I know Hancock kept one of Mrs. Deering's children and clothed him; I never knew Mrs. Deering lived with Andrew Ball as his wife, or that she had any children after Deering's death.

Mr. Harper sworn - I know Richard Deering, he is an apprentice of mine; Andrew Ball apprenticed him to me; Hancock was not present; I was to receive £20 as a premium; I only received £10 of it, part from Hancock, and part from Andrew Ball; I applied it to Hancock for the remainder, and he told me that he could not pay it, as the rent was spent on the children as soon as it was received; it was about the end of the year 1832, or 1833, that this conversation took place.

This closed the case for the prosecution.

Mr. Wentworth then rose and stated there was no case for the Jury, the father of the children Deering being a prisoner for life at penal settlement.

Mr. Therry then rose and endeavoured to set aside the objection.

His Honor then stated he was sorry to say the objection raised by Mr. Wentworth was a fatal one. He said he was sorry, inasmuch as he felt there had been fraud practised on the children by some one; but, continued his Honor, when the case comes on in the Court of Equity, a deep and scrutinizing attention shall be paid to it do. His Honor then concluded by stating there was no case for the Jury, and the defendant was discharged.

Published by the Division of Law, Macquarie University