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

Moses v. Osborne [1842] NSWSupC 27

money had and received - bill of lading - perjury

Supreme Court of New South Wales

Dowling CJ, Messrs Campbell and Brown (Assessors), 25 April 1842

Source: The Sydney Herald, 26 April 1842

            This was an action for money had and received by the defendant to the use of the plaintiff. Mr. Foster appeared for the plaintiff, and Mr. Windeyer, with whom was Mr. Broadhurst, for the defendant.

            The circumstances of the case were shortly as follow :- A large quantity of goods were shipped at Sydney on board a vessel called the Two Sisters, to be carried to and sold at Hobart Town . John Moses the brother of the plaintiff, had gone to Hobart Town with the goods, which were there, it is alleged, sold by the defendant on account of Isaac Moses, the plaintiff; the bill of lading of the goods was filled up in the name of Isaac Moses, but the name appeared to have been written over an erasure, the space of which it was contended by the defendant, had been previously occupied by the name of John Moses, and that the goods which had been sold were in fact the goods of John Moses, and had never been the goods of Isaac, the plaintiff. A Mr. Mattheson, clerk to the principal superintendent of Hobart Town, stated that he had been told by John Moses, that the bill of lading had been altered by him in order that a party of the name of Lucas, to whom he, John Moses, was indebted, should not be able to get the goods at Hobart Town . Another witness named George Downing, a headsman, living at Hobart Town, deposed that he knew John Moses, who had stated to witness that the bill of lading had been altered, as, if it had borne his, John Moses's, name, Lucas would have detained the goods on board the vessel, as he, J. Moses, owed Lucas money. In answer to this evidence, a party of the name of Cheeseborough was called by the plaintiff, who deposed that the bill of lading was filled up by him as it was presented to the court, (viz., in the name of Isaac Moses) before the Two Sisters left Sydney, that the captain of the vessel signed the bill of lading in that state. John Moses himself denied that he ever had obliterated his own name from the bill of lading, or inserted Isaac Moses's in its place, and further denied that he had ever told any one that he had done so. He further denied that he ever had any interest in the goods, and said that they had been delivered over to the defendant Osborne to sue an account of the plaintiff.

            His HONOR in commenting on the above evidence in summing up, said that it was clear on comparing the evidence of the plaintiff and defendant, some parties must have committed perjury; and it would in some measure rest on the verdict which the Assessors might give, whether some of the witnesses would not be committed by the court to take their trial for perjury.  

            At the conclusion of the summing up, the Assessors consulted together, and in about a quarter of an hour returned a verdict for the plaintiff, damages £104. Attorney for the plaintiff, Norton; for the defendant, Rodd and Johnson.

Published by the Division of Law, Macquarie University