Before the Acting Chief Justice and a Civil Jury.

Joseph Dobson, dealer, and Isaac David Nichols, landholder, stood indicted for having fraudulently conspired together to withdraw the goods and person of the said Joseph Dobson from the Colony, for the purpose of defrauding Samuel Lyons and other creditors of the said Joseph Dobson.  The information contained five counts, which charged the defendants with having made a false bill of sale, assignment of goods, &c. &c.

Mr. Foster (with whom was Mr. Windeyer) opened the case for the prosecution, and briefly stated:-  That about the month of February, 1835, Dobson's affairs became embarrassed, and he consulted Mr. Nichols, who persuaded him to go to Concord (Mr. N.'s estate) for a short time; but as Dobson did not agree to that, he advised him to proceed to Launceston, to which Dobson acceded, and In April Dobson and the woman with whom he lived (Margaret Myers) proceeded to the South Head in Nicholl's gig; from there Dobson went on board the Currency Lass, then under weight for Launceston; Nichols had joined the vessel at the wharf; he left her at Watson's Bay, and took Mrs. Myers into Sydney; before Dobson left the Colony he transferred the whole of his stock of crockeryware and glass to Nicholls, by a bill of sale; by the Currency Lass, Nichols shipped six crates of earthenware ``to order," which were delivered to Dobson, upon his producing an order on his arrival at Launceston; the woman, Myers, after Dobson's departure, continued to sell in the shop under the name of Nichols; Mr. Lyons, to whom Dobson was indebted in the sum of £137, proceeded against Nichols under the Foreign Attachment Act; but Nichols producing the bill of sale, and swearing that Dobson was still considerably indebted to him, the attachment fell to the ground; Mr. Rodd issued an execution against Dobson's goods; upon Nichols claiming them, Mr. R. indemnified the Sheriff, and went on, but he was subsequently obliged to give the goods up and pay the expenses to the amount of £26; in consequence of Nichols not acting for Dobson as he thought he ought to do, he returned from Launceston to Sydney for the purpose of punishing Nichols, and he accordingly stated the whole case to his creditors, and gave up certain letters which he had received from Nichols; the said letters were addressed to Mr. Joseph Park, Launceston, and commenced with ``Dear Joe."  The following are extracts, dated 4th April (two days after Dobson had sailed):-

``The sweep has taken out a summons against you.  By the Elizabeth you will receive one hundred dozen oranges; all goes on well yet."

``April 11. - Every body thinks you are gone to England by the Red Rover.  Dawes has been here, and I have promised him four shillings in the pound.  After paying everybody four shillings in the pound, there will not be much more than £100, besides my claim, and what you have with you.  In other letters I have sent you three hundred and eighty dozen oranges.  I have had the devil to pay with the creditors.  Lyons has issued a foreign attachment, and Rodd an execution.  I am still keeping on the shop, as you do not write positively what to do."

Dobson subsequently refused to swear to the statement he had made, and in consequence the present proceedings were instituted.  He then called

Mr. S. Lyons, who being sworn, said, I had some dealings with Dobson in 1825; he was indebted to me for goods to the amount of £137; heard of Dobson leaving the Colony; proceeded against Nicholls under a foreign attachment, to attach goods belonging to Dobson, which Nichols had; I recollect the attachment coming on to be heard; the defendant (Nichols) was examined; he stated they were his goods; I had attached as he had a bill of sale from Dobson, and he likewise swore Dobson was in his debt £80, besides the goods he had in hand; he denied that he had any thing of Dobson's in his possession; the goods wee principally crockery and glass; they were in the house formerly occupied by Dobson; in consequence of this the attachment was defeated; Dobson returned to the  Colony about four months ago; I met him the day after I heard he had come up; I said to him, Dobson, I thought you would have given me a call; he said he had been drinking the over night, or he would; he had, he said, come up in consequence of the treatment he had received from Nichols; he had letters to show Nichols's conduct, and he intended to acquaint his creditors; I made an appointment to meet him at Mr. Unwin's office the following morning; he came in company with Mrs. Myers, who I used to think was Mrs. Dobson; she lived with Dobson as his wife; Dobson made a statement in the presence of Unwin, D. Chambers, and myself; he produced several letters, which were read; I put no mark upon, and therefore cannot swear to them; he said his object in coming up to Sydney was to give information to the creditors respecting the transaction between Nichols and himself.

Mr. F Unwin confirmed the statements of Mr. Lyons, as to the interview with Dobson.

Mr. Lyons recalled - Dobson made a statement that day, but I do not think it was taken down by Mr. Unwin; I know since that writings were taken down, but whether that morning or not I cannot say; an affidavit was drawn up and read to Dobson by Mr. Grant (clerk to Mr. Unwin); Dobson admitted it was all true with one exception, that was about a promissory note, which he said was not due; Grant wished Dobson to go over to the Police Office and swear to it; he declined until he had seen Mr. Nichols.

Cross-examined - The foreign attachment was issued in 1835; I swore to a debt; one of the bills was not due, I had a security which had not arrived at maturity; I told Mrs. Myers that I would persuade the other creditors not to arrest Dobson; that was after he had made the statement; after I had seen the letters, I was of opinion Nichols was a bigger rogue than Dobson, and therefore promised I would not arrest him; no inducement was held out to Dobson to make any statement.

Mrs. Rebecca Myers - No person has apprised me of what is going on in Court; I was Dobson's housekeeper for many years until he left the Colony; I sold in the shop his account; before he left the Colony, I knew his affairs were embarrassed; he did not tell me that Nichols had proposed to him to go to Concord to ``hide" himself; he had before gone there with the family to spend a day; I mean my children; I have a large family by Dobson; Dobson went on board the Currency Lass at the Heads; I went with him to the Light House in Nichols' gig; I do not know the vessel Dobson left the Colony in; I wrote to him at Launceston in the name of Park; Nichols drove me home from the Light House in his gig; before Dobson left the Colony, possession of his stock was given over to Nichols; I do not know the value of the stock, but the shop was pretty well full.  It being now five o'clock, the learned Judge seeing there was no prospect of the case closing that night suggested an adjournment until the following morning.  Some more creditors were examined, whose evidence merely tended to establish the case as opened by Mr. Foster.  There being some names upon the back of the information which plaintiff's Counsel declined calling, His Honor ruled that they should be called in consequence of such decision, Counsel for defence called.

Mr. Abraham Polack - I am an Auctioneer, and sold some goods at Dobson's house by order of Nichols; samples were given out to me; I sold £117 3s. 8d. gross on account of Nichols; I was surprised at the small amount, particularly when Nichols had told me he expected much more.

Cross-examined - Mrs. Myers was there when I held the sale; I understood Dobson did not leave the Colony in an honorable way; he owed me money when he left; Mr. Rodd paid me the amount.

Mr. S. Stephen then on the part of the defendants contended, that the first four counts in the information had not been made out.

Mr. Therry on the same side contended, that the only proof against the defendants was the bill of sale which had not been produced.  Whereas the rule of law as laid down was, that the only proof of a written document was in its own production, which had not been done.

The Acting Chief Justice considered that he was bound to send the case to the Jury.

Mr. S. Stephen then went into a review of the plaintiff's case (at considerable length) on the part of the defendant (Nichols).

Mr. Therry having followed on the part of Dobson, they called

Mr. Samuel Lyons - The bill produced I don't know whether it was given to me by Nichols; if notice had been given to me, I might have been enabled to answer the question; it is filled up by my clerk; Dobson bought some horses at a sale I held; cannot say who paid for them.

Joseph Yeomans - (I witnessed the account produced) an articled clerk to Mr. R. Nichols; this is a settlement of accounts between Isaac Nichols and Dobson.

Cross-examined - I was acquainted with Dobson, and happened to be in his house by accident; Nichols and Dobson were in an adjoining room; I was in the shop; I heard the bill explained to Dobson; the latter was then indebted to Nichols about £500; that was in 1835; I think the writing is in Mr. F. Stephen's hand.

Mr. F. Stephen - I made up the account produced for Mr. Isaac Nichols (it went on to make up the amount of £558 due from Dobson, consisting of different acceptances given to various parties by Nichols on Dobson's account); did not state to Dobson that I did not care what amount was put into the bill of sale; the goods made over were estimated at £400.

Cross examined - I cannot say from which document the account was made, but it was evidently an old document; this is the bill of sale; it is executed the day after the account was made up; I satisfied myself the account was correct, before I drew up the bill of sale; did not suspect any fraud; this bill of exchange for £119, now produced, drawn on the 1st May, 1834, was paid in April of this year.

Mr. Dawes recalled - (Mr. Stephen objected to his evidence, as it was meant to falsify the bill of sale.

Mr. Foster, in an able and lengthy address, having replied upon the whole case, His Honor suggested to the Jury the propriety of adjourning to this morning, to which the Jury acceded.

Source: Sydney Gazette, 27 August 1836

THURSDAY, AUGUST 25.

Rex v. Nichols and Dobson.

(Continued.)

His Honor the Chief Justice having taken his seat at ten o'clock this morning, immediately commenced charging the Jury, in the course of which he observed, that the case for both plaintiff and defendants having closed, he was quite sure that they (the Jury) had applied their minds to the full consideration of it, and were prepared to deal with it as a Jury ought to do.  It was unnecessary for him to say how certain he felt that they would not be influenced by any thing they might have heard out of doors, but perform their duty constitutionally, with candour and fairness. It had been objected in the course of the proceedings, that it was a private prosecution; with that, however, they had nothing to do.  It was true the prosecuting of such cases was vested in the power of the Attorney General, but he could exercise his discretion, and the parties had taken the case out of his hands, there was nothing improper or irregular in so doing.  Gentlemen, he continued, it is a case most undoubtedly which materially affects the general interest of the Colony, as well as the parties more immediately concerned.  It was the first of the kind which had occnrred in this Colony, although they were very common in the mother country.  A conspiracy in law was where two or more persons combined together for the purpose of defrauding another party, but it was essential that there must be at leas two persons.  The then defendants were charged with having conspired together to defraud the creditors of Dobson by withdrawing his person and property, so as to prevent them obtaining the due payment of their just claims in the regular course of law.  In pursuance of such conspiracy, Dobson had executed a bill of sale to Nichols, as being a good, true, and valid bill, and in consequence the latter took possession of all his goods and chattels.  The second, third, and fourth counts were nearly the same.  The fifth charged them with a conspiracy to cheat and defraud the creditors.  It was for them (the Jury) to say, whether any of the counts had been supported by the evidence - they must be satisfied that they had agreed together to prosecute one common design.  There was no clear or distinct evidence of any previous concert, but although there might be no such proof, yet they might reasonably infer that such an agreement did exist from their various acts.  It did not appear that any creditor was at the time in such a situation as to compel payment by a due course of law.  It was enough that the Jury were satisfied defendants; intentions were to defraud, then their acts, doings, and sayings subsequently would be evidence against them.  After having made these observations, (he continued) he would again call their attention to the charges themselves, as set forth in the various counts, and not necessary they should find upon the whole declaration, in order to support some parts of which a great deal of evidence had been given, but as he had previously observed, it was not necessary to have clear or distinct proof of previous concert, it was sufficient if they were satisfied from defendants' subsequent conduct.  The first witness, he said, called, was Mr. Samuel Lyons, upon whose motives much observation had been made.  It was true he might have come forward with a prejudice against them, but that was occasioned through having lost his money, but with respect to an alleged angry feeling, had he, or the other witnesses so conducted themselves in the box as to disentitle them to credit?  It was clear that Lyons' evidence supported the first count, for Nichols had said the whole of Dobson's property was his, that he had a demand for £80 more, and through that circumstance, Lyons' claim was defeated.  (He then went into the particulars of the latter's evidence, and next to that, of Mr. Unwin, who had identified the letters as having been signed by the defendant Nichols).  He had sworn that he took down the statement from Dobson's own lips.  Now, if he spoke the truth, it was strong evidence against Nichols.  It was on the 28th of March Dobson had spoken to Nichols about some heavy bills; it was then first proposed that he should go to Concord, but afterwards he went to Launceston; Dobson executed the bill of sale on the 2nd April.  (Having gone through the remainder of Mr. U.'s evidence, he continued).  Much observation had been made for a breach of faith in not having returned the letters to Dobson as he had in the first place come forward, and made the disclosure.  But as he had subsequently refused to verify this statement upon oath, it became a question whether the parties were at all blameable in withholding the letters.

Mr. Therry, on the part of Dobson, suggested that there was no evidence to show the affidavit he had refused to swear to was the same as the statement he had made.

His Honor said, the jury would judge of that, and continued - No inducement had been held out to Dobson to make the statement, it was his own voluntary act; when the statement was made, Lyons promised not to arrest him, and likewise promised to speak to the other creditors, but he (Lyons) had said ``he had reasons for afterwards breaking his word, his object being at that time to take Nichols up to the Police-office, but Dobson having refused to swear to the affidavit and finding that he and Nichols were both about to quit the colony, it was then that he arrested him and did not think himself any longer bound to keep his promise."  If that were true, continued his honor, it explained away the charge of having broken his word.  He next referred to the evidence of the commander of the ``Currency Lass," the vessel in which Dobson sailed, upon which he remarked, it was very common for persons to ship themselves at the Heads, there was no great suspicion in that provided the names of such parties were entered in the clearance.  Having gone through some other parts of the evidence, he next alluded to the letters, many of which, he said, bore internal evidence of there having been a previous concert between the two defendants - there was Dobson assuming the name of Park, and the familiar manner in which the other addressed him.  He referred particularly to the passages ``all goes on well yet" - ``Every body thinks you are gone home in the ``Red Rover."  Now no other person but Nichols seemed to know where he had gone to.  Again, from Nichols advising Dobson to keep quiet, it was clear the bill of sale could not have been bona fide, for how could there have been £100 left if he had acted fairly?  But it was left for them (the jury) to apply their minds honestly and candidly, as to the whole of the transaction.  He read another letter, wherein Nichols stated he was keeping on the shop for Dobson, and asked - Why should Nichols have kept on the shop if it had been an honest transaction?  Why did he consult Dobson as to the disposal of the property?  He continued - the case for the prosecution here rested.  They (the jury) had then been addressed at considerable length by the two Counsel.  It was no part of his duty to take any notes of such argument, no doubt evidence might be illustrated and reasoned upon by Counsel in a manner which might be useful to his client, but, he could not forbear observing, that the course taken by the two Counsel, differed considerably; Dobson's counsel had contended that he was no conspirator, but the mere dupe of Nichols; whilst the course taken by the counsel for the latter, was to impeach the testimony of Dobson.  But it was his (the Judge's) province to state clearly the nature of the evidence brought forward for the defence.  He then went over the evidence - The question was, whether there should not have been some account in order to make it appear how the various items were made up?  Some part of the bills were not due, but that account had charged them all as being due.  Having gone through the whole of the defence, he continued that was the evidence on both sides, they had now been sitting three days on the case, he had discharged his duty by calling their close attention to the particular part of the evidence, and it was for them now to say whether the charge had been made out or not.  It was merely in the latter part of the case the bill of sale had been put forward.  One circumstance the prosecutor relied upon, was the departure of Dobson two days after the bill of sale had been executed.  Another was, Nichols going down in the vessel, meeting him at the Heads, and driving home his wife.  Another was, that of Dobson assuming a false name with the concurrence of both defendants.  Another was, Nichols shipping crockeryware, and Dobson receiving it at Van Diemen's Land.  Another was, the previous friendship existing between them.  Another, Nichols endorsing Dobson's bills.  Another was, his becoming bail for the latter when about to be arrested.  The next important circumstance relied upon, were the letters containing various passages shewing a concert between them.  Another circumstance shewed a guilty knowledge on the part of defendants.  Or why say Dobson had gone to England?  If he had been an honest man, why not have stated that Dobson being embarrassed in his circumstances, had gone down to Van Diemen's Land until he could turn himself round?  Was it for the purpose of throwing the creditors off their guard?  Then again take the bill of sale as it was?  Had the valuation of the goods been correct, was it consistent with the after proceeding to pay the creditors 4s. in the pound, and still leave £100 for Dobson.  Under all these circumstances were they satisfied that it was a conspiracy, with a guilty design to defraud the creditors?  It had been contended on the part of Dobson, that he was the mere dupe of a more artful rascal!  Was it really his object in coming up from Launceston, to make reparation to his creditors, or was it because Nichols had not given so much money as he had been led to expect?  It would appear that the sending down goods to a person named King was the occasion of Dobson returning, and then complaining of Nichols to the creditors.  But could it be said, that after he had refused as an honest man to assist his creditors, he had any right to complain if they would not grant him any indulgence?  If they were of opinion, the object in joining together was not to defraud but merely to help the poor man (Dobson), then they would acquit both defendants.  But according to their own good sense, exercising a fair and candid judgment, if they saw any thing in the case which they might consider in favour of the defendants, they would give them the benefit of it.  He had merely made such observations upon the case as the evidence had suggested, it was for them (the Jury) to draw their own conclusions.  If they though the charge had been made out, they would say so by the their verdict.

The Jury then retired, and after an absence of forty minutes, returned with a verdict of Guilty against both defendants.

Mr. Foster having prayed judgment upon them,

Mr. Therry rose and hoped the sentence of the Court would be deferred, in order that they might move an arrest of judgment, and Counsel were not then prepared to state all the points they might wish to urge.

The Chief Justice - Will you state shortly the ground upon which you mean to move?  Mr. Therry said they could move for a mitigation of punishment - that of moving for a new trial was still open to them, as well as the arrest of judgment.  He would call his Honor's attention to the first count, and if his proposed objection was good in that it would apply to all the others.  The information did not state any particular date when the transactions alluded to had commenced.  The time was very essential, but here no time was stated, which ought to have been, as the essence of the offence.

The Chief Justice said he understood Mr. Therry was going briefly to state the points and not to argue them.

Mr. Therry - There is no day stated - it would be most unusual to pass sentence when such points could be raised.

The Chief Justice, in reply, said - In a case of so much importance to the public, he would not pass sentence without first consulting his brother Judges.

Mr. S. Stephen said he would submit that the withdrawing himself from the colony was not of itself a crime on the part of Dobson, and therefore any one assisting him could not make it a conspiracy.  In the next place, the several counts declare it to have been his intention to prevent his lawful arrest.  Now, from the evidence, it was clear that none of the creditors were in a situation to arrest him at the time he went away.  In the next place, there was no action or attachment out against him.  If he had withdrawn his property from any attachment, his attempt would have been illegal, but that was not the case.  It could be no conspiracy to escape when there was no danger existing or contemplated.  Lastly, the concluding count was too general.  It was these and other points he wished to have an opportunity of arguing.

His Honor enquired whether they would be prepared on the following morning, but being answered by Messrs. Stephen and Therry in the negative, the argument was ordered to come on at ten o'clock this morning (Saturday.)

Upon the question of bail for Nichols, His Honor directed him to enter into sureties, himself in £500, with two others in £250 each; but upon the application of the Attorney General, that amount was ordered to be doubled; viz. himself in £1000, with two sureties in £500 each.  Messrs. Joseph Roberts and Robert Fitzgerald presented themselves as the bail, and the Court adjourned.

Dowling A.C.J., Burton and Kinchela JJ, 27 August 1836

SATURDAY, AUGUST 27, 1836.

Rex. v. Nichols and Dobson

(Continued.)

This case having been called on, the acting Chief Justice said - It would perhaps be most convenient to inform the court the nature of the case, previous to Counsel entering upon the argument.  He then read over to his brother Judges the whole of the information, the questions raised by defendant's counsel, and also the leading point given in evidence: when done he observed - that he had not then thought it necessary to go through the whole of the evidence, he had merely given the chief facts and substance, but if it was thought necessary, he would go through the whole; the other Judges not desiring it, he added - that after the whole case had been gone through, he adjourned the case until the following morning, in order to give the jury an opportunity of calmly weighing the subject in their minds.  He did not affect to go over all his summing up, but being I the habit of taking down any parts of law which he introduced into his charge, if there was anything stated in his charge which his learned brothers thought wrong, it would now be set right.  (He then went over the heads of his summing up, for which, see last number.)

Mr. S. Stephen then rose and said - He meant first to move an arrest of judgment.

Chief Justice - The regular course was first to move for the new trial, because it stood to reason, if the trial was pronounced bad, there could be no occasion to move an arrest of judgment.

Mr. Stephen said - Then he would not make his intended motion for a new trial, but rely upon the arrest of judgment.  He went on to say - he appeared there on the part of Nichols, and would submit, that the judgment must be arrested; first, as no time was mentioned in the declaration, when the offence had been committed, which was the very essence of the offence.  The old books were clear upon the point that the time should be stated, although he was aware considerable alterations had taken place from the old law.  In all cases where there was no time mentioned, the pleadings were to be taken strongly in favour of the defendant.  This office, which charges Nichols with enabling Dobson to leave the colony, might have taken place in December, 1834.  Suppose he did go away at that time?  If he did, there were no creditors at that time, therefore it became necessary to prove that there were creditors at the time Dobson left, and to do that, the declaration ought to have contained it.

Mr. Justice Burton - Suppose a day had been named, would it have been necessary to prove the offence had been committed on that day?

Mr. Stephen - No, your honor.

Mr. Justice Burton - Then the day is not material.  You may name any day in the information, and prove another: that circumstance alone shows its immateriality.

Mr. Stephen - I submit that the offence must be laid after the commission, and not prior to the act.

Mr. Justice Burton - The very day prior to the information being filed is sufficient.

Mr. Stephen - If this conspiracy had taken place prior to November, 1834, then there were no creditors of Dobson whatever.

Mr. Justice Kinchela - If it was proved there was a conspiracy against any one, it was not necessary to mention the name.

Mr. Justice Burton - Suppose a man was charged with some specific act, then it would be necessary to show the particular day.  But he would lay it down as law, that in conspiracy it was not necessary .

Mr. Stephen would submit to their honors, and continued.  As regarded the first counts in the information, it alleged that they had combined to defraud the creditors and prevent them recovering their money by due course of law.  Now it did not appear there were any creditors at that time, who were in a situation to recover by such course.

Mr. Foster - This has nothing to do with arrest of judgment.

Chief Justice - It would be argument for a new trial.

Mr. Justice Burton - You cannot allude to the evidence at all now.

Mr. Stephen continued - There was one objection which he took upon the trial, which was the non production of the bill of sale of which his honor the Chief Justice took a note.

Chief Justice - There was quite enough of evidence without that.  Besides it was put in by yourselves afterwards.

Mr. Stephen said - He must submit and sat down.

Mr. Therry on the same side then rose and said - After the strong opinion their honors had expressed upon the arrest of judgment, he was reluctant to trouble them.  Mr. Justice Burton had said that time was not necessary in a conspiracy.  Now he would submit that it was.

Mr. Justice Burton - The time might be material in the investigation of the case, but not to the record.

Mr. Therry continued - Sometimes it was material and sometimes it was not but where it became material, it should be shown upon the record.  This was the first case where a total absence of time was ever known.  The deposition was no part of the record, it was only the preamble; the allegation of time in the deposition formed no part of the record.  He considered that the time should be shown upon the record, but if their honors were of opinion it should not, he would submit.

Mr. Justice Burton - I am decidedly of opinion it need not.

Chief Justice - I own I have full considered this case in all its bearings and am of opinion the question of time is really of no object whatever.  If the objection was valid at all, it might have been moved on demurrer.  Time is not the essence of the offence in this case.  In a case of poaching it was necessary time should be stated, and also in that burglary, because time there was one of the essential things to be established before the offenders could be made liable to the penal consequences.  But in this case it was of no consequence, it not being necessary to prove it.  He quoted a case, from which it appeared that if the fraud could be made out, any time mentioned before the information was laid was sufficient; as to the other objections they could be of no avail as there was abundant evidence to convict the parties without them.  Polack for instance had taken out execution before Dobson escaped, and a bill which Grose held was due at the time.  The fifth count itself was enough to justify the Jury in finding a verdict of guilty.  There was one curious objection taken, to which it might as well be to allude, which was that Dobson had been charged with escaping as if it had been from legal custody.  But that was not the common acceptation of the term, and it must take a more liberal meaning.  It appears to me that no legal objection can be taken to the record.

Mr. Foster then prayed the judgment of the Court upon the defendants.

Mr. Stephen was about to address the Court in mitigation of punishment, but was stopt by the Chief Justice, who observed, that the usual course pursued in the Court of King's Bench at home was to have affidavits put in and read first, and then to hear Counsel afterwards.

The affidavits were the put in and read, that of Nichols was to the effect that he had no intention whatever to defraud the creditors of Dobson.  On the contrary, he had advised him not to leave the Colony, but to go Concord, and did not know it was his intention to go to Launceston until within a day or two previous to his starting.  He never intended or expected to reap any pecuniary advantage from Dobson's escaping.

That of Dobson was to the effect, that he left the Colony for the purpose of enabling himself to pay his creditors.

Mr. Stephen rose and said, in addressing the Court in mitigation of punishment, he trusted he might be allowed to go into some of the circumstances which came before the Jury, in order to show that they had come to a different conclusion from what himself or other persons might have done.

Chief Justice - I do not think it competent for you now to do that, you may fall back upon what came out before the Court favorable to the defendants, but you cannot go any further.

Mr. Stephen contended - The form of conspiracy was unlike all other charges, because it did not become necessary to prove a confederacy, but merely to collect the fact from subsequent circumstances.  There seemed to be such a confusion and mixture between the thing to be proved, and the means by which it was to be proved that it became difficult for any person what was a conspiracy.  There were many circumstances which would make the offence greater or less.  A conspiracy was a greater or less offence according to the injury contemplated, or which might arise from it.  It [sic] a case of journeymen for instance, combining against their master to compel him to advance their wages, it could not be considered to carry with it the same degree of enormity as that of conspiracy, which might blast a man's reputation, nay even subject him to capital punishment.  Although the guilt of the parties might be viewed alike, yet it was impossible, but that the degree of offence must have some weight with the Court.  If the Jury were satisfied of the guilt of the parties, they could not acquit them; yet still if it appeared that they might have combined without knowing what risk they were running, such fact ought to be considered.  With respect to a bill of sale, the party receiving it may have paid one half and owe the other half, yet, still he was guilty of conspiracy, so that in this case the whole £558 was not due, but only half of it, but being liable for the remainder Nichols took the bill for security, yet although the means used might be lawful, the end was a conspiracy.  Now it had been proved by the prosecutor's own witnesses that there was merely a debt due for £225, their Honors would perceive that the bill was for £558, but the first item of liabilities was £221 10s. 8d. which is stated by Mr. Dawes as being the amount of two bills if paid when at maturity; the other was not so paid, he stated he never got anything from Dobson, but got it paid by Nichols in April last, during the interim Nichols was still liable.  He would call their attention to what was proved by the party who drew up the bill of sale, that Nichols was still liable for the amount, although he could not produce the bills, and therefore was obliged to guess it.  There was a debt also due to Salting, which Nichols paid.  It appeared this bill of sale was made out only two days before Dobson went away; this circumstance was pressed heavily against the defendant.  It was also charged against him, that one item was entered as an I O U, now it was a mere matter of moonshine how it was entered, so long as he was liable for the amount.  The suddenness with which the bill was made out might account for some part being done in error, which is now charged as fraudulent.  The fact was the error arose through putting down all the bills as due when they were not so, but still Nichols was liable for them.

Mr. Justice Burton - It so happens that the debt as well as the I O U, was laid out in the bill of sale.

Mr. Stephen - It has been proved that the bill of sale was made out without concert.

Chief Justice - It has been proved by a young man, who did not hear all that passed.

Mr. Stephen contended - Although it was not all heard by a young man, there was nothing in that.  The Attorney had sworn he made out the account, although not the subscribing witness.  Polack's account was state to be £80 instead of £86; Lyons; was stated £40 instead of £44 in the bill of sale.  The only item in which there could be a mistake was that of Dawes, there was an error in that arising from an impression upon the minds of the parties, that there was only one bill due to him, and the amount due to Salting, which made a difference of £50.  But then there was interest to the amount of £20 which Nichols was entitled to charge, and an error of £10, so that after all there was only an amount of some £20, which was not sufficient to induce a man to lay himself under legal culpability.

Chief Justice - You opened your case by stating that the value of the goods was upwards of £400; but you produced no evidence to that fact.

Mr. Stephen - When the Auctioneer sold the goods, he said the shop was full.

Chief Justice - How could he see all over the house?

Mr. Stephen contended - But say that the back and the upper room was full, there could only have been three times £117.

Chief Justice.  But the Captain of the ship proved that there were six crates sent down with Dobson.

Mr. Stephen - He does not say who had them.

Chief Justice - That shows the illegality of the transaction.  If they had been regularly entered through the Custom House they could have been traced, and it would then have been known who had them.

Mr. Stephen contended - It was not necessary that all the mount was due for which the bill of sale was given.

Chief Justice - But you state in the bill of sale that it was all due.

Mr. Justice Burton - It would have made a great difference in my mind if the bill of sale had stated in general terms, that so much was owing to persons in Sydney, instead of having specified particular sums and names.

Chief Justice - That would have been doing things honestly.

Mr. Stephen contended - He would ask if the bill of sale had been given to pay himself, he could not so pay himself?  But he did not take it to pay himself, it was as a trustee to pay the creditors.

The Chief Justice said, that was contradicted by the letter commencing Dr. Joe, wherein he stated that ``an action had been commenced - advising him to keep quiet - people though he had gone to England - only £100 would be left when 4s in the pound was paid &c."  He read the letter, and observed that the £100 alluded to was said to be left after some of the things had been sold off.

Mr. Stephen contended, it appeared that the whole case was for making a false return.

The Chief Justice - The essence of the crime is to make the creditors take four shillings in the pound, instead of twenty shillings.

Mr. Stephen contended, he would submit that if it should have been so, even without that it did not alter their conspiracy, and upon that the question was tried.  Now if he (Mr. S.) owed £100 to a man, and more to several, and paid the first to the exclusion of all the others, there was nothing criminal in the act, even under the new Insolvent Act he could not be punished.

Mr. Justice Kinchela, yes, but if you concealed the property it would alter the case.

Mr. Stephen contended, it was upon the production of the letter which had been read by the Chief Justice that the opinion of the Jury had been formed, they believed that the letter, and through it, were connected the defendant's previous acts.

Mr. Justice Kinchela, the Jury only could be satisfied of a conspiracy by the overt acts of the party.

Mr. Stephen continued - if there was testimony to show that the money received by Nichols was not sufficient to pay all the creditors, then the letter could be no irrefragable proof of fraud.

Chief Justice - all this argument goes to show that the man Nichols ought to have been convicted.

Mr. Stephen - there was no illegal conspiracy if the bill was merely to pay Nichols.

Chief Justice, the Jury found it was done for the purpose of fraud.

Mr. Stephen continued - the very fact of Nichols having become security for the former bills was used as an argument against him, yet was it not in his favour having paid these bills, had he not a right to call for a bill of sale to hold the property in trust for the creditors?

Mr. Justice Burton - I have taken down a memorandum and perceive that the amount of goods was £558, debts £531 - and some of the goods were sent to Van Diemen's Land.  Therefore there was more than would have paid all creditors twenty shillings in the pound.  You are therefore, now opening my mind more on the matter thnn [sic] I knew before.

Mr. Stephen, the goods taken down by Dobson were after the bill of sale had been made, Nichols had a right to send them to whom he liked.

Mr. Justice Burton - the only debt due to Nichols was £98, the amount £531 was made up by the debts of the other creditors.

Mr. Stephen - but your Honor Nichols was still liable for those debts!

Chief Justice, ten to one he never meant to pay them.

Mr. Stephen, it was no moral fraud for a man to pay himself.

Chief Justice, is it no moral fraud to cheat people out of their money?  It may perhaps not be so in New South Wales! but it is so every where else.

Mr. Stephen said, in morality he would submit to none.

Chief Justice - I did not allude to you, Mr. Stephen.

Mr. Justice Burton - What is the conduct of your client, Mr. Stephen?  Under execution, Mr. Polack seizes the goods; your client makes an affidavit; Polack is defeated; Nichols then obtains £20 damages, with £6 costs, for such seizure.

Mr. Stephen - Nichols became merely a trustee, and was so, in fact.

Mr. Justice Kinchela - He intercepted them in every way.

Chief Justice - Without fraud, how could he prevent the creditors to recover their property?  How could he swear upon the Holy Scriptures that all the goods were his, if he was merely acting as a trustee?

Mr. Stephen - That was not conspiracy!

Chief Justice - Was it not perjury, my worthy friend?

Mr. Stephen continued - Nichols wrote some letters advising Dobson to return to Sydney, which showed that he could not have wished to keep him out of the way.  He had had two actions brought against him, and was likely to suffer from other proceedings very seriously,  therefore would be seriously injured.  He would ask whether under such circumstances they would visit him (Nichols) with heavy punishment?  He was but a young man, and if he got into debt again he would take care how he endeavoured to get out of it.  He therefore trusted their Honors would deal lightly with him.

Mr. Therry then rose, and said - He would not take up much of their Honors' time.  As to the innocence of the parties he was precluded from going into it, and and [sic] therefore he would merely go into that part of it which went to show that there was no intention to defraud.  It certainly would have been better if the particulars of all the items had been reduced to writing, but where parties were unacquainted with the proper course it might easily occur.  It was before the Court that Dobson was an ignorant man, he could neither read nor write, which might be some explanation of his conduct.  He might have had a consciousness in his mind that he was securing the just debt of Nichols, and also had a prospect of obtaining a settlement with his other creditors.  He did not, in the first instance, intend to leave the colony, but finding that he could not get relieved he was compelled to go.  He leaves all he had with Nichols, with the exception of those goods that he took with him.  Now, did he dispose of those goods for his own benefit?  No!  He returns property to Sydney.  For what purpose should he do that, but for having his debts adjusted through Nichols?  His agreement at the time he left Sydney was to give up all to Nichols, and to send up as much more property as he could.  As to any pecuniary interest he had with Nichols, it was nothing.  The whole of what he had was only sold for £117, whilst Nichols had to pay for him £221 10s. 8d.  That he had any pecuniary interest the evidence all went to the contrary.  Whatever kindness Nichols was influenced by towards Dobson, it was clear he had no mercenary motive.  Further, with respect to Dobson when he was at Unwin's office, the only ground of complaint he had was, that Nichols had not served him as he promised, viz. by not having settled with his creditors.  That was his grievance.  When he came up to Sydney, he expressed his disapprobation at the proceeds of goods which he had sent up from Launceston, having not been appropriated to the satisfying his creditors' claims.  He then gave up his papers and letters, with the full impression that he would be safe from all arrest.  Lyons gave him a receipt for them, and made a promise to that effect, but because he would not swear to a particular affidavit, the next day, through a locus penitentia, which was against Nichols, a prosecution was entered against him.  If he had been in error, how did he act?  He went first to Lyons, the most vindictive of his creditors, and made the disclosure, in full expectation that he would by that means get a settlement with Nichols and his other creditors.  His impression was, that he was obtaining a lawful object by a lawful means, (he then referred to Talfourd's Reports, as to what conspiracy was; the opinion was to the effect, that whether it consisted in the end or the means, it was the same, but whether neither the end nor the means were alleged, it was difficult to say in what part of the offence could the conspiracy be founded) and then continued.  This is the case of Dobson.  His object was to escape from imprisonment, and he (Mr. T.) was one of those who considered that imprisonment for debt ought to be abandoned.  Now, his object being to escape from being imprisoned, the means he used were lawful.  He wished to get himself round, and so satisfy all claims against him.  Now, the object and the means being lawful, there could be no crime.  Such being the design and object of Nichols and Dobson, any irregularity by which it was accomplished could not make it a conspiracy.  These were the points which struck his (Mr. T.'s) mind, and which he trusted would entitle the defendants to the consideration of the Court.  The line which separated the legitimate from the illegitimate course was very narrow, and might easily without design be o'erstepped by the ignorant, or through a want of judgment.  He therefore trusted the Court would visit the defendants with a light punishment.

Mr. Foster, on the part of the prosecution, then rose and said, He would not have troubled their Honors, had it not been through some remarks which had fallen from his learned friends on the opposite side.  Mr. Stephen had wished to make out that the bill of sale was made up in order to satisfy the whole of the liabilities, and that the only thing to find fault with was a mere error in stating the different items.  But their Honors would see that the only liability with which Nichols could fairly charge Dobson, was an amount of £119.  There was not a tittle [sic] of evidence that any of the bills had been paid before Dobson went away.  Then as to how long the conspiracy had been pending, their Honors would see they had gone to an Attorney, who seeing they could not make a clear statement, sent them back again.  Then as to the bill of sale he need say nothing farther, than that all who heard the evidence could easily see how it had been concocted.  As to the old I. O. U. it proved nothing, they might as well have conspired for £50,000 as £500; Nichols' claim as alleged was but £480, whereas the goods assigned to him were worth £550, from this it was clear that the only object the defendants had was to prevent the other creditors from getting their money.  When Mr. Stephen spoke of the mere error which arose through the laudable motive of getting a friend out of the Colony, he must have forgot how the bill of sale was drawn up; he must have forgot that Nichols had represented he had gone to England; Nichols resisted an execution, as sworn by an express positive affidavit, that the goods were his own; he brought an action against the party, who had sought to recover their just debt, and recovered £20 damages, with £6 costs.  How was it possible therefore for them to contend that it was a bona fide bill of sale, for the benefit of the other creditors.  If Nichols had paid the four shillings in the pound, the case might have assumed a different complexion.  Did he even offer it?  If he had, some of them might have taken it.  It had been admitted that day that Nichols had advised Dobson to go to Concord, to keep him out of the way, until Nichols had got a release for him from the creditors.  The conduct of Mr. Lyons had been animadverted upon.  If the Counsel had attended more to clear the imputation cast upon their own clients, they would have acted more wisely.  But when they attempted to impugn Lyons's evidence, he was surprised, but he (Mr. F.) would strike it all out, and then there was sufficient to establish the fraud. - But every part of Lyons's evidence was corroborated by other persons fully and clearly.  So far from any blame attaching to Lyons, his conduct was most praiseworthy; the public ought to feel deeply indebted to him for the course which he had adopted, and he (Mr. F.) trusted that the example which Lyons had brought about would have a beneficial, a salutary effect upon the minds of all who fraudulently imposed upon their creditors.  It had been said that Dobson went down to Launceston to acquire property, in order that he might be enabled to satisfy his creditors.  But did it not appear from the letter which His Honor the Chief Justice had read, that it was not his intention to come up again.  What did he come up for?  After having joined with Nichols to defraud others, he thought Nichols was going to defraud him. - When Dobson made the statement at Unwin's, what does Lyons do?  Why in order to have the case fairly investigated, he promised Dobson, that if he would go on fairly, make a full disclosure, and assist in bringing the other party to justice, his papers should again be given up.  Well, the affidavit was drawn, it was read over to him, he objected only to one part, that part was struck out even then he refused to swear to it; not on account of its containing any false statement, but because he could not do it until he had seen Nichols.  What then did Nichols do?  Why, feeling that they had colluded together to defraud, and being then likely to be discovered, he colluded with him again.  Was not then Lyons, after such treatment, justified in keeping the letters?  It was a duty which he owed to the public - it was conduct which every properly constructed mind could not but approve.  If he had acted otherwise - if the letters and papers had been given up, the parties would have escaped from within the reach of justice, and been left at liberty to contract other frauds similar to that of which they had been convicted.  Why then impugn such conduct, which puts a stop to the malpractises [sic] of such unprincipled persons?  One of the defendants was said to be but a young man; true he might be, but he was of high standing, a fact clearly shewn by the facility with which he so immediately produced the large amount of the required bail.  He is a man of considerable property, also of good education, and therefore ought to have set a different example to his less fortunate countrymen.  The sentence which the Court might pass, would, he trusted, prevent a recurrence of similar offences - offences so highly prejudicial to the best interests of the community.  The learned gentlemen having concluded,

The Chief Justice proceeded to pass sentence - in doing which, he observed to the defendants, that a Jury of their country, after three days' sitting, had found them guilty upon as clear evidence as had ever been produced in a case of conspiracy.  The Court had carefully attended to the affidavits put in, and also to the arguments urged in their behalf by Counsel.  There was one topic dwelt upon by the latter, which he could not pass over, viz. that they had been convicted of merely a legal and not a moral offence - that their hearts and minds were not disposed to do any person an injury - that he offence had been committed merely through misfortune.  On behalf of Nichols it had been urged that he had no interest in the transaction, his only object being merely to serve his friend.  These topics had been argued with great power to the  Jury, but they after a serious consideration had found them guilty, he (the Chief Justice) was satisfied, had they not been convinced, that their hearts and minds were disposed to commit fraud, they (the Jury) would not have found them guilty.  The Court was likewise fully satisfied of their guilt.  As to the bill of sale being given for a bona fide debt, was that consistent with the whole bearing of their conduct?  It was clear the bill was given not to pay the general creditors of Dobson, but to put into his own pocket sixteen shillings in the pound.  There was another feature against Nichols; he swore a solemn oath that the whole of the goods were his, and thereby extracted from the Attorney in the case £20 damages with £6 costs.  Did that fact or did it not show fraud.  However the Jury had already decided upon that.  It had been alleged, also , that there were some other proceedings against Nichols which ought to weigh with them.  With that, however, they (the Court) had nothing to do, they must deal with the case as it was presented before them.  It had been urged for Dobson that he came up to Sydney to settle with his creditors.  But was that the fact?  It appeared that he came up accompanied by his quasi wife with vindictive feelings against Nichols, to gratify which he went to Unwin's office and made the disclosure.  It was (he continued) unnecessary to dwell more upon the subject; the case had already occupied a great length of time, and the Jury upon their solemn oath had pronounced them guilty.

Nichols left the court in company of the jailor, the other with his quasi wife and a constable.

The Sydney Herald, 15 September 1836, took this case as another opportunity to attack the now departed Forbes C.J.  It claimed that Forbes had advised Lyons how to act: ``we cannot help thinking that it is a matter of very great doubt, whether the honest Judge would have advised him. - No; we do not think that Mr. Justice Burton would have given advice in this way.  But, then, Mr. Burton, by the Botany Bay liberals, is said to be a Tory - and Tory Judges never give advice! That's `the short and long of it.'"