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

R. v. Weare [1841] NSWSupC 74


Supreme Court of New South Wales

Dowling C.J., 14 July 1841

Source: Australian, 17 July 1841


            WEDNESDAY - The Queen at the prosecution of Henry Vaughan v. John Fisher Weare. - In this case, the prisoner John Fisher Weare was indicted for larcency of a case of hats, the property of his master Henry Vaughan. The information contained four counts; the three first charging the offence as a larceny, and the fourth count as an embezzlement. The circumstances of the case were briefly these:- The prisoner, John Fisher Weare (who, it appears, is the son of a respectable merchant in Bristol) having entered into the trade and business of hatter and tailor, in Pitt-street, became indebted to the prosecutor Vaughan to the extent of about sixty pounds for goods sold and delivered; he also became indebted to Mr. Richard Jones, tailor, of George-street, for cloth and other articles found him in the course of trade. The general stagnation of business in Sydney for the last six or eight months, prevented the prisoner from meeting his engagements, and being much importuned by Vaughan for the amount of his claims, the prisoner was induced to execute a warrant of attorney in favour of Vaughan for £75, upon which judgment was entered, and shortly after, execution issued. Before, however, the execution was levied, Vaughan called upon the prisoner, and informed him, that he understood Mr. Jones was going to put a bailiff in his (Weare's) house, and that he must have a bill of sale of every article in the shop, as additional security!! To this proposal the prisoner decidedly objected at first; but afterwards, upon Vaughan promising to pay the other creditors of Weare, and agreeing to give the prisoner 30s. a week to act as shop-man to Vaughan. He at length prevailed on him to execute the bill of sale, by which means, the prosecutor became possessed of all Weare's property, leaving the other creditors to shift for themselves. The prisoner finding that Vaughan had not paid Mr. Jones as he expected he would have done, and acting under the advice of a friend, sent a case of hats out of the shop to Mr. Jones, in part payment of the debt, but made an entry of the sale in the day-book at the time of delivery; and upon being questioned by Vaughan as to the sale, the prisoner at once said, "Yes, I sold the hats to Mr. Jones, and he will pay you for them." It afterwards appeared, that the bill of parcels was made out thus - "Richard Jones, debtor to J. F Weare," the prisoner thereby, selling the hats to Mr. Jones as being his own property.

            The cases for the prosecution having closed, Mr. Purefoy, on behalf of the prisoner, submitted that there was no case whatever against the prisoner to constitute larceny (Archbold 170); but where the possession of goods is acquired from the owner for a special purpose, and the bailee afterwards wrongfully converts them to his own use, this is not larceny but a breach of trust (2 Deacon's Criminal Law, 747; 2 East p. c. 693; Rex v. Harrison, 1 Leach, 47.)

            His Honor the Chief Justice said, the case had better go to the jury, when Mr. Purefoy addressed them at considerable length, commenting severely on the conduct of the prosecutor Vaughan, and directing the attention of the jury to the upright and honest manner in which it was evident the prisoner was desirous to act, from the exertions he had made to satisfy his creditors, or divide his property equally amongst them. Several highly respectable gentlemen gave the prisoner a most excellent character for integrity and honesty.

            Mr. Hustler briefly replied, when his Honor summed up, and the jury acquitted the prisoner without leaving the box.

            Counsel for the prosecution, the Solicitor-General, and Mr. Hustler; for the prisoner, Mr. Purefoy.

Published by the Division of Law, Macquarie University