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

R. v. Carter [1856] NSWSupCMB 3

pledge of goods, criminal

Supreme Court of New South Wales, Moreton Bay

Milford J., 26 May 1856

Source: Moreton Bay Courier, 31 May 1856, p. 2

William Carter, on bail, was indicted for a misdemeanour; for that he, having been entrusted, as agent, with 17 bales of wool, by one John Brewster, did, without the authority of the said John Brewster, and in violation of good faith, unlawfully pledge one bale of the said wool with one George Raff, as security for the sum of £20. Defendant pleaded not guilty, and was defended by Mr. Pring and Mr. Purefoy, with Mr. Little as attorney.

Mr. Dowling stated the case for the Crown. Seventeen bales of wool belonging to Mr. Brewster, having become damaged, were sent by the owner to defendant, to repack; defendant being a wool sorter, &c. A similar number of bales were afterwards given up; but from evidence gathered from a man named Lewis, there was reason to believe that a portion of Brewster's wool had been appropriated by the prisoner. It having been ascertained that defendant had shipped some wool on board of the Forres, for London, through the agency of Mr. Raff, a search was made, which ended in the identification of a portion of the wool so shipped by defendant, as belonging to Brewster. The pledging charged in the indictment was this: on shipping the wool, defendant received as advance in money from Mr. Raff.

Mr. Pring for the defence, raised two objections---that the defendant was not an agent within the meaning of the Act, and that there was no pledge given within the meaning of the act. His Honour reserved the points.

George Raff, merchant, residing in Brisbane, deposed: I know the defendant, who is a wool sorter, his occupation being to open bales of wool, if wet, dry them, and repack them. I know Mr. Brewster, a squatter. His wool came to me in Dec. last. I cannot say how many bales. They were branded Jno. Brewster. I did not sell any to the prisoner. I knew a vessel called the "Forres." I was agent for that vessel. The prisoner, I believe, shipped 8 bale of wool on board that vessel. Before the prisoner had shipped the wool, I made an advance upon it to the prisoner of one hundred pounds. About a week after I had made the advance, I, from information received, had some conversation with Carter about these 8 bales of wool, telling him that I had heard some of the wool had been stolen, and that he [page 3] must inform me from whom he got it. The prisoner replied "certainly," and went home to bring his account book. The prisoner brought some books into which I looked. I then told him I wanted to see the receipt or bill of the party from whom he had purchased this wool. He, the prisoner, then went to fetch it. On returning the second time, the prisoner brought a document into the store, where Messrs. Stephens and Brewster then were. The document or receipt was returned to defendant, I remarking at the time that the skin wool was accounted for, but the fleece wool was yet to be accounted for, The defendant again went away, and returned the third time, with a document (produced) declaring it to be a true copy. Upon being asked who was Ross, the person named in the paper, defendant said he was a carrier. I have seen the contents of one bale of wool, branded WRC, No. 1. I am no judge of wool. I was not satisfied with the document produced, and upon asking prisoner for further explanation, he said he could explain all at the police office.

(Cross-examined by Mr. Pring.) When the prisoner was told the wool could no go in the Forres, it was intended to ship it in the Gazehound, but afterwards it was sent by the Forres, as I found there would be room. There was no concealment. When I spoke to Carter about the wool, I did not tell him they had been down to the Forres and opened his bales of wool. It was in consequence of information that I went to Carter. The first memorandum brought by Carter referred to skin wool. The document or memo. Marked A, was said by the prisoner to be a true copy of his book. On prisoner's returning the last time, he told me that he was advised not to show the receipts, and that he wished to have the matter cleared up at the police court. He told me part of the fleece wool had been bought from Williams and part from Ross. The prisoner was much excited at the time. Brewster and Stephens were present during the conversation with Carter in the office. I advanced money on 8 bales of wool. I did not see Brewster's wool on its arrival from the station. I did not get the weight of the wool from Brewster. I do not know the quantity of wool in the 17 bales sent to Carter. The wool upon which I advanced £100 to Carter would have been forwarded to Redfern & Alexander in London, if this case had not occurred, and the proceeds would have been placed to my credit.

(Re-examined.) I sometimes get possession of wool upon which advances are made. The advance was made before the wool came to the store. Redfern & Alexander would only have known me in the matter had the wool been sent home.

(By Mr. Pring.) I was Carter's agent in shipping the wool.

William Brown, wharfinger and storekeeper to Messrs. Raff and Co., deposed: In January last I received from defendant 8 bales of wool, 2 branded WRC, 3 branded WC with F above, and 3 branded WC. Those branded WRC had the numbers 1 and 2. These 8 bales were for shipment for defendant, in the Forres. At that time I had 41 bales of wool of Mr. Brewster's for shipment. 21 bales of these I received on 31st October, and the other 20 on or about the 7 th November. Of the 21 bales, there were 16 damages, and of the 20 bales, one damaged. These 17 bales of wool were sent to defendant, who is a woolsorter and fellmonger. I received from him 17 bales again on the 16 th November. Do not know the weight of the bales sent to him. I afterwards received from defendant a pocket of wool---ullage---being the surplus that cannot be stowed in the bales. I believe these 17 bales were afterwards sold to Mr. Stephens. No other wool was shipped in the Forres, branded like the 8 bales. I weighed the whole of Mr. Brewster's wool---the 17 being weighed after they came from defendant.

(Cross-examined by Mr. Milford.) The duty of defendant was to dry and repack the wool, making it fit for the marker; and taking out the damaged wool. Saw some of Mr. Brewster's wool in prisoner's store, undergoing the process of screening. The clippings that fell through the screening table would certainly reduce the weight of the bales. Remember subsequently that defendant showed me the two receipts produced, and I told him I considered them correct.

(Re-examined.) Whatever surplus there is in these cases, is returned after the wool had been repacked.

(By the Court.) I have here in this book the w eights of the 17 bales returned from Mr. Carter. I entered the weight on the same day, from the memorandum I made when I weighed them. The total weight of the 17 bales and the ullage is 45 cwt. and 11 lb. The ullage was 34 lb. The bales averaged nearly 2cwt. 3 qrs.

----- Lewis, deposed: In November and December last I was in Mr. Carter's employ, packing wool. We had 17 bales of wool there belonging to Mr. Brewster. Part of it was wet. After the wool was dried and repacked, defendant made up the same number of bales---seventeen. There was an ullage left, about two-thirds of a bale. The 17 bales were sent away first. There was then left two-thirds of a bale, and a little bag of locks and sweepage---about 30 lb. This little "poke" (bag) was returned to Mr. Raff seven or eight days afterwards. The rest of the wool that remained was then on the floor behind the press, but on my return in the evening, after being absent wool washing, this wool was gone, and a fresh bale repacked. This was not delivered by me to Raff. Afterwards saw the same bale of wool in Carter's son's store. Saw it afterwards going over to Mr. Raff's store. It was then marked EC. Other wool was sent over at the same time, some being branded WRC. The wool I saw on the floor after the 17 bales were returned, was Mr. Brewster's. There was about 200lbs of it. There was some other wool in the store, but not like Mr. Brewster's.

(Cross-examined by Mr. Pring.) I knew Brewster's wool because it was dark outside and clean inside. There were two other bales packed in Mr. Carter's store---partly belonging to other people. I never made the charge against Mr. Carter for this, but mentioned it at the police office. I will swear that some of the wool belonged to other people. I washed it. It was LL brand. I do not know who it belonged to, or how it came to the store. The remainder was returned to Mr. Raff. The German boy went with me to the water-hole to wash the wool on the morning when I saw the remainder of Mr. Brewster's wool there. The boy went into the store for the horse harness. He could see the wool on the floor. I usually keep the key of the store, but on that morning left it with the defendant's son, as defendant wanted to repack some wool that morning. I did not, on my return from the water-hole, take the key from my pocket and unlock the door. I had a conversation with Mr. Brewster to this subject, about a month afterwards. I had been discharged from defendant's service three days before this. I had not quarrelled with the defendant, nor used the bad language you (counsel) mention. I did say that I hoped he (Carter) would be as miserable as I.

(Re-examined.) The bale which I believe to contain Mr. Brewster's wool, was taken over to defendant's store by myself.

(By a juror.) I could tell that it was fleece wool by the look of the pack outside. The bale was put on board the ketch Sarah.

Thomas Blacket Stephens, wool broker, deposed: I have been in the wool trade for these twenty years. I bought about ninety bales of wool from, Mr. Brewster's last clip. Saw some of that wool in Carter's store, being dried and repacked. I sold none of the wool to defendant. I was on board the Forres with Mr. Brewster, and examined eight bales wool---branded WC, WC with F over, and WRC. We opened one of the WRC bales, No. 1. This wool had just been placed on board from the ketch Sarah. We found two kinds of wool inside; about three parts of one kind, and from my knowledge of wool I believe this to have been taken out of Mr. Brewster's wool that I saw in Carter's store. I cannot swear to it positively, but have no doubt of it. It was of a peculiar appearance---dark and dirty outside, yellow in the middle, and clean at the root. I had not seen any wool like Brewster's during that season. Then loss in drying and repacking on a bale of wool weighing 300 lbs. before getting wet, ought not to be more than two or three pounds, and perhaps not so much. I before saw the bales of wool marked WRC, &c., with Carter, at Kangaroo Point ferry. Mr. Brewster's wool was not very dirty.

(Cross-examined by Mr. Pring.) When I purchased Brewster's wool I examined about six or eight bales by cutting them open; but the damaged wool I saw open in Carter's store. Mr. Brewster threw off a penny a pound to me, on account of the damage of the wool. The great bulk of the wool I saw in Carter's store had not been damaged.

(Re-examined.) Have seen Mr. Brewster's clips for the last four or five years.

This was the case for the Crown. Mr. Pring submitted to his Honour whether there was any case for the jury, there being no evidence of the weight of the bales, or any quantity being missing. His Honour being of opinion that there was enough to go to the jury, Mr. Pring proceeded to address them for the defence, dwelling very ably upon the slight nature of the evidence, resting as it did almost entirely upon the story of a discarded servant. His client wished not to take advantage of mere points of law, although some had been taken, but rested well satisfied to abide by their verdict, which he had no doubt would send him from that Court as he had entered it, without a blemish on his character. If there had been any evidence of the weights of the bales, he could have produced abundant testimony of the loss sustained by wool in drying and repacking; but that was now unnecessary. He would, however, plainly contradict the witness Lewis as to the locking of the store door, and in order that not a shadow of doubt should rest on their minds, he would now put in the receipts which the prosecution had been so anxious to get hold of.

John Glassop, a German boy, in the service of Mr. Carter, deposed that, on the day named by Lewis, he went into the store for the horse harness. Saw no loose wool in store but skin wool. If any had been there he must have seen it. Lewis locked the door, and took the key with him. When he (Lewis) returned, he unlocked the wool store, and put the harness in. He (Lewis) took the key out of his pocket. Mr. Carter was not packing wool that day, as he (witness) believed. When Lewis and witness finally returned, about 5 o'clock, Carter was pulling the ferry boat. Witness had seen him doing so greater part of the day.

W.C. Carter, son of the defendant, resides about 50 or 60 yards from his father's wool store. Recollects Brewster having some wool at his father's. It was sent back on Friday, 16 th of November. The following day I was in my own store. I saw my father two or three times on that day. I know a man named Lewis. He did not being me a padlock key of the store that day. I saw the store door locked, apparently, all that day. There was no one at work there. My father was pulling the ferry boat that day. I saw the German boy in the morning. I did not see Lewis return in the evening from the washing pool. I was in the store after Brewster's wool went away. There was no fleece wool, only a few locks, and some dirty skin wool of my father's. There were 3 bales of skin wool of my father's packed in one corner of the store. I recollect my father discharging Lewis. It was on the 7 th January. Brewster's wool went away on the 16 th November. Lewis used very abusive language to my father when he discharged him. The receipts produced bear my signature (Receipt put in and read.) Ross and Williams' signatures to the receipts for wool purchased, were signed in my presence. The w eight of wool bought of Ross was 578 lbs.; wool bought of Williams, 826 lbs. My father buys wool and skins. The receipts produced represent the wool shipped by my father on board the Forres, as fleeced wool.

Edward Lord, storekeeper, deposed: I have been for many years acquainted with the unpacking and repacking of wool. Certainly nobody could s w ear to any fleece as being any particular person's clip. In repacking there would be a loss in weight of about give per cent. Should not think that a person could, from one bale, judge of the character of the whole clip.

(Cross-examined.) I have been acquainted with the process of wool sorting for the last twenty years.

Captain Wickham, Government Resident at Moreton Bay, gave defendant an excellent character. He had been lessee of the Government ferry for the past three years, and had always appeared to be a thoroughly honest man.

The defence being closed, Mr. Dowling replied very briefly. His Honour merely put the case in the hands of the jury, making two or three strong remarks in favour of the defendant, and expressing some surprise that the jury had not stopped the case before. The jury immediately returned a verdict of acquittal.

Published by the Division of Law, Macquarie University