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

Burke v. Troy [1828] NSWSupC 47

rent, succession, forgery, will, attestation of, deed, formalities

Supreme Court of New South Wales

Dowling J., 26 June 1828

Source: Sydney Gazette, 30 June 1828

This was an action brought by the plaintiff, Edmund Burke, merchant of Sydney, as executor to the estate of Patrick McKew, deceased, against the defendant Patrick Troy, to recover the sum of £26, for rent of certain premises occupied by him in Kent-street, Sydney.  The defendant pleaded a deed of gift of the premises in question, from the deceased, McKew, and the plaintiff gave notice of bringing forward evidence to prove the same a forgery.

The plaintiff's Counsel stated the case, and put in evidence the will of the late Patrick McKew, as the authority under which he sued, and whereby the property occupied by the defendant was set forth as part of the available assets for the benefit of some of his family in Ireland.  The following witnesses were then examined:-

Mr. James Morduant, who stated himself to have been lately employed in the office of Mr. Rowe, the plaintiff's solicitor, proved the demand made on the defendant, in the month of January, 1828.

Mich. McAuliff. - I am a clerk in the office of Mr. Wentworth; I saw the deceased, Patrick McKew, sign an instrument purporting to be his will, on the night on which he died, in July 1827; I witnessed the instrument, and would know it again; the instrument now produced is the same; it was read to McKew twice in my presence, and I saw him put his mark to it; I did not hear him request any alterations to be made in it; a man named Higgins, and several other persons were also present; I believe Higgins also witnessed the will.

Cross-examined. - McKew was perfectly sensible at the time; he said he was glad to see me come to witness his will; all the witnesses to the will signed it in my presence; McKew touched the pen when the mark was made; I saw McKew two or three days before, and he appeared to me to be in good health; the will is written by a man named Higgins, who was schoolmaster at the Roman Catholic School; the memorandum at the bottom is not like the same hand-writing, but it may be the same, as I have seen him write different hands; I do not know it to be in the hand-writing of the Rev. Mr. Therry; at the time the will was executed, I believe there was something said about the little writing at the bottom; whatever was said about it was said by the testator; I do not remember that the testator said he would not sign any will but that which had Mr. Therry's little writing at the bottom; the writer of the will, Higgins, was assigned at that time, to the Rev. Mr. Therry; Higgins and I went together to the house of the deceased, and on the way I remarked to him that the will was not dated, and he said that could be done in the presence of the testator; I have no doubt the ratification on the back, was written at the same time the will was executed.

Andrew Higgins. - I am clerk to the Rev. Mr. Therry; I knew a man named Patrick McKew up to the time of his death; I had known him for 6 or 7 years before;  I saw him on the night on which he died, and had some conversation with him; McAuliff, a man named McKeever, and some other persons were present; I proceeded to the residence of McKew, by desire of the Rev. Mr. Therry, who have me a memorandum to a will, which I was to put into a more regular form; before I went, I prepared a more regular form of will, and took it with me, but the deceased refused to sign it, and said he would not execute any paper, but that which had Mr. Therry's little writing at the bottom; I had drawn the memorandum which Mr. Therry put into my hands, myself, about 9 or 12 months before; I shewed McKew the more formal paper, but he refused to sign any thing but that which had Mr. Therry's little writing at the bottom; the will now produced is the original memorandum put into my hands by Mr. Therry, and which the deceased signed; it is in my hand-writing; the writing at the bottom is the Rev. Mr. Therry's; the whole of the paper was read over by me, to McKew, who was in sound mind at the time; I put the endorsement on the back, because the will was dated in 1826, and it was then 1827; McKew held the pen, and I made the cross.

Cross-examined. - This will was originally drawn by me, 9 or 12 months before, at the request of McKew, and when he was in perfect health, and he retained it in his possession till a short time before his death, when Mr. Therry called to see him.

John McDonagh. - I was servant to the deceased, Patrick McKew, up to the time of his death; I knew the defendant Troy; he resided then, in a house belonging to McKew, in Kent-street, before his death, and a considerable time after; I do not know whether he has yet delivered up the keys, or whether he continues in possession by himself or some other person.

The plaintiff closed his case here, reserving any further evidence until it became necessary to rebut the defence set up by the defendant.

The defendant's Counsel then addressed the Jury, at some length, and concluded by stating that he should clearly establish the execution of the deed of gift, from the deceased, McKew, to his client, of the premises in question.

Joseph Bradley. - I am a clerk by profession, but not at present in any particular employment; I am in the habit of writing for various persons; I know the defendant in this action; I knew the deceased McKew; I remember early in 1827, being sent for by McKew, to come to his house in Kent-street; I went there accordingly, and found McKew, the defendant, and his wife and family present; McKew desired me to draw a deed of gift of the premises in which he resided, to the defendant, Troy, in consideration of the love and affection which he bore him and his family, and of one pound to be paid from the defendant to McKew, on condition of his paying a weekly rent of 10s. during the life of the latter; I drew the deed accordingly, and when it was nearly finished, McKew on his part, desired Troy to send for a person named Lawry, to witness it; about ten minutes after Lawry came, just as I was writing the final, signed, sealed, and delivered, and put his name to the deed, as a witness, and then went away, in company with a man named Spencer, who was in an adjoining room with Mrs. Troy; this occurred in a front room in the house; the seal was put on after the deed was drawn, and then McKew put his mark opposite; I saw the defendant pay over the consideration, a one pound sterling note, to McKew; the defendant paid me 10s. and McKew 10s. for drawing the deed; the deed now produced is in my hand-writing, and witnessed by me; the signature "Astly Lawry," was written in my presence, as well as the mark made by McKew; I swear that I saw this instrument regularly executed on the day it bears date; after Lawry and Spencer went away, I had a glass of wine with McKew and the defendant; McKew said he wished Troy success with it.

Cross-examined. - I and Lawry were not intimate, but I used to frequent his house, when he kept the Black Horse in King-street; I do not recollect ever having attested any instrument with him before; I have never transacted any particular business with him; Lawry received no compensation for his trouble in my presence, nor have I ever heard that he received any; I used to keep Troy's accounts when he kept a public-house; we have been intimate for 12 years past; after the execution of the deed I received £5 from Troy, on account of money lent to him and his wife at various times, and writings done for him; he is indebted to me £10 at present; I got his note of hand for £5, payable in a month, as I was in want of money at the time; the body of the note was drawn by me; it was accepted by Troy, by making his mark, and witnessed by Lawry; this was three months after the deed of gift was drawn; the note was given in Lawry's house, the Black Horse, where I was in the habit of going; Lawry came into the room about five or ten minutes after Troy and I, and was called on by Troy to witness the note; I told Lawry that Troy owed me money, and that the note was for £5 on account, and asked him to witness it; Lawry's name only appeared to the note as a witness; I drew another note subsequently for Troy, payable to Lawry for £5, which was witnessed by Spencer, and was, as I understood, in payment of a book debt; this was about a month after the execution of the deed of gift; I had no conversation with Lawry at any time, as to the evidence we were to give in this cause; I do not know the name of the messenger who came for me to desire that I would go to the house of McKew, about the deed of gift; the deed was nearly finished when Lawry came in; I do not know who went for him; McKew told Troy to send for Lawry, and he went out for that purpose; I was finishing the deed when Lawry came in, and I read it over to him; two dollars were paid to me by Troy, and two by McKew; the pound paid to McKew was a sterling bill, on one of the Banks of Sydney; I cannot say whether the seal had been put on the deed when Lawry arrived; I had the wax in my pocket, and I used a candle for the purpose of sealing the deed; I do not know what impression I used; I sometimes use a farthing and sometimes a dump; I cannot say which I used on this occasion; to the best of my knowledge the paper on which the deed was written remained in the same state, except as to the writing and sealing, when I left it as when it was brought in by Troy; this instrument is indented; I cannot swear that I indented it, but I know it is customary with me to do so; no other person indented it in my presence, and I never indented it at any time after; as I drew it I left it after me; I cannot say whether I indented it then or not; I sealed it with either a dump or a farthing, nearly about the time that Lawry came into the room; Lawry made no remark on it in my presence, when I read it over to him; Spencer and Lawry went away from Troy's together; about that time I drew a note of hand for Troy, in favour of Spencer for £5, one in favour of Lawry for £5, and also one in my own favour, witnessed by Lawry, for £5; the consideration for Spencer's note, as I understood, was an execution against Troy, which was paid by him; Lawry's note was for a book debt, and money advanced, as I heard; I lived in Parramatta previous to coming to Sydney; I left Parramatta in 1823, and have supported myself since by writing for different persons; I have since made from £3 to £4 a-week by writing; I generally spend my money as I get it; I have not laid by a farthing; I have earned 10, 15, and sometimes £20 in a-day by writing (!!!!!); I have lent money to Troy and his family several times; I did not say that I got 10, 15, and £20 a-day by writing; I have not got £10 in a day; I have got £3 or £4; I cannot name any individual from whom I have ever received £3 or £4 in a day; I have got £10 in a week, but not from one individual; Lawry came into the room just as the deed was about to be sealed; I was formerly clerk to the Bench of Magistrates at Parramatta; I resigned that situation without any intimation being given to me that it was necessary that I should do so; when I first went to Parramatta I had about £300 a-year, when I resigned the situation was not worth more than £100 a-year; I swear upon my solemn oath that this deed was executed voluntarily by the party, on the day it bears date; I swear I was not dismissed from my situation at Parramatta, by Dr. Douglass, for drunkenness, or any other cause.

By a Juror. - The deed was read to McKew, and I am perfectly sure the intent and meaning were understood by him; I explained it to him in Lawry's presence, and he wished Troy success; I am sensible McKew would have known the difference between a deed of gift and a lease; the only consideration besides the £1, that I heard of, was, that they were countrymen, and some obligations McKew was under to Troy; McKew was standing up when he executed the deed; he held the pen in his hand, and I guided it while he made his mark; I had the wax in my pocket, and one of Troy's sons brought me the light.

Astley Lawry. - I reside with my father, and am a clerk by profession; I kept a public house during the last twelve months; I was acquainted with a man named McKew, who resided in Kent-street; I knew the defendant Troy; he resided under the same roof with McKew, in part of the same house, which was divided off by a partition, in May 1827; I remember being sent for by McKew in the beginning of that month; a boy of Troy's came for me; I lived then in King-street, about a quarter of a mile from McKew's house; I went, and found in the room Bradley, McKew, and Troy; when I came in I observed some writing lying on the table, and McKew said to me, "I have sent for you, Mr. Lawry, to witness a deed of gift," and then desired Bradley to read it over, and asked me to witness it; I signed the deed, and Troy gave a one-pound sterling note to McKew, who wished him joy of the house, and I came away with Mr. Spencer, who was waiting for me in another room; this was all I saw, and all that passed at the time, that I heard; I shut up the public-house when Troy's boy came for me, and Spencer, who was my partner, came to look after me to Troy's; I do not think I remained more than five minutes altogether; the deed now produced is the one I saw executed, and is witnessed by me; I heard it read to McKew, but there was no further explanation given to him; I received nothing for witnessing it; I knew McKew for 7 or 8 years; I had no acquaintance with Troy before that time; McKew had no family in the Colony.

Cross-examined. - I had no particular intimacy with McKew; I don't know why he sent for me particularly, the boy told me that McKew wanted me, and I shut up my shop to go to him; I can't recollect whether or not Spencer was in the room when the deed was executed; the deed was executed in the skilling at the back of the house, and not in a front room; the deed was prepared when I came; Bradley read it over; I do not think there was a candle lighting in the room; McKew signed the deed almost immediately after it was read; he held the pen in his right hand, and made his mark; he was sitting at the table at the time; he took the pen in his hand, of his own volition and made his mark; the pen was in McKew's hand at the time; I did not see any other person touch the pen; McKew was sitting when he signed the deed; nothing was done with the deed after my arrival, but signing it; I don't know whether there was any wafer put on the deed; I don't know whether there was any seal on it; after the paper was read over, Bradley said to McKew "do you acknowledge this to be your deed of gift, in presence of myself and Mr. Lawry?"  McKew replied that he did; the deed was all ready when I arrived; at one time I lent Troy £10, on a piece of ground, for which I held his transfer as security, and when he wanted to sell the ground, he gave me £5 in money, and a note for £5, which was the only transaction I ever had with him in that way; I think I witnessed a note drawn by Troy in favour of Bradley, and which, I heard Bradley say was for some writing he had done for Troy; it may have been about the time the deed was executed that I saw that note given; it was witnessed by me, at my house, when I kept the "Black Horse;" I can't say it was the very day after the deed of gift was drawn; it might have been about that time; I can't exactly say, but to the best of my knowledge, it was somewhere about that time; it might have been on the very same day; I know it was either the day before or the day after; it was not more either way; I won't swear it was not on the very day the deed of gift was drawn; Troy and Bradley were at my house on that very day, I believe; I do not think Spencer was present, but it was at that meeting the note for £5 was given to Bradley; Bradley said he had done some writing for Troy, and he was going to give him £5 for it; I have not heard from either of them that the five pounds were given for the deed of gift; McKew was sitting down when he signed the deed; Bradley gave him the pen, and he made his mark; he held the pen himself, freely and voluntarily of his own accord; I swear I did not hold the pen; I saw the mark made, but I can not say whether Bradley took hold of] the pen in McKew's hand; I cannot say whether McKew used the right or the left hand; I can't recollect that I had any conversation at any time, with Bradley, respecting the evidence we were to give in this action; we have been in attendance on the Court for several days, but almost certain I said nothing to him about it; the deed was executed in a skilling, at the back part of the house, with a sloping roof; it was not in a front room; I do not remember whether there was a bed in the place; I am positive McKew was sitting when he made his mark to the deed; I do not think the deed was indented in the way it now appears, when I witnessed it; I do not know if it had a seal on it; I heard the deed read, but I cannot, at this time, describe its purport further than that it was a deed of gift of a house; on my solemn oath, this deed was executed by McKew, on the day it bears date.

Counsel for the defence closed his case here.

On the part of the plaintiff, the following witnesses were then called and examined:

The Rev. J. J. Therry. - I am a Roman Catholic Clergyman; I knew Patrick McKew in his lifetime, and was in the habit of attending him lately before his death; on the morning of the day on which he died, he asked me to make out a will, and take charge of his property for him, to which I partly consented, and asked him if he had not the draft of a will already by him, and which I requested to see; on its being produced, he said he wished to make some little additions to it, which I wrote in his presence, at the bottom of the will; the additions were, £20 to the Catholic Chapel, £20 to his own servant,  £10 to the Benevolent Society, and £10 for a purpose which he said he would explain to the person who came to make out the will more regularly; I wrote these additions myself, in his presence, and though he was an illiterate man, he had an opportunity of observing the difference in the writing from that on the body of the instrument; on the same day, I gave that draft to Andrew Higgins, my clerk, for the purpose of preparing from it a more formal will; the instrument now produced is that which I received from McKew, and the addition at the bottom is in my handwriting; I was present at McKew's death, and I know that he had executed that will previously; I had some conversation with him the same day, on his private affairs, and he never alluded to any deed of gift, nor adverted in any way to any property occupied by Patrick Troy; I first heard of  a deed of gift, about a month after his death; I knew that Troy and McKew were intimate at one time, but they were not so for some time previous to his death.

Isaac Williams. - I am a settler at the Field of Mars; I knew Patrick McKew, and remember the time of his death; I know the defendant Troy, and had a conversation with him shortly after McKew's death, when he told me that I was party to a deed of gift, for that McKew had made him a present of the premises he then occupied, and the rest were left to me, and at the same time asked me if I would consent to have them; I said I would not, and went away; at this time I thought there was a deed of gift; when I came again to the house, shortly after, Troy's wife told me I was not mentioned in the deed, and Troy, calling me out into the garden, asked me if it would consent to have it done, and be a party, when I replied I would not for all the houses in Kent-street, be guilty of such a thing; I think this was the day after McKew's death.

Eugene Quin. - I am clerk in the Court of Requests; I know the defendant Troy; I knew McKew, and remember the time of his death; on the day after his death, when he was waking, Troy called me out of the room, and asked me if I was capable of drawing a deed of gift; I said I was not, but that I knew a person who could and would instruct me, and that I would let him know in a day or two; he then took me into the yard behind the premises, and putting his foot against that part of the house in which he dwelt, said, "McKew has made me a present of this part of the house;" he then told me if I could prepare a deed of gift for him, he would make me a present of £10 sterling; I did not know then what the deed of gift was for, but on comparing that circumstance with what I have heard since, I have no doubt that it was for the premises he occupied.

John M'Donough. - I was servant to the deceased, McKew; I remember about three weeks before his death, that he was summoned to the Police Office, for selling spirits without a license, and he blamed Troy for setting the fine on him; up to the time of his death, he continued to be angry with Troy, and often wished him out of his house; I never saw them at any time particularly intimate.

Counsel for the plaintiff declined addressing the Jury.

Mr. Justice Dowling told the Jury, that the plaintiff, by giving in evidence the will of the deceased Patrick McKew, having established his right to sue, the sole question for them was, whether, upon the testimony before them, they believed the deed of gift laid in evidence by the defendant, to be a genuine instrument, duly executed as had been stated by the witnesses to it, or whether it was altogether founded in fraud and forgery.  If they believed that to be a valid instrument, then, whatever might be its legal value, it was an answer to the plaintiff's claim in the present action; if, however, they were of opinion that it was a forgery, they would find a verdict for the plaintiff and assess the damages at £26.  The learned Judge was about to read over his notes of the evidence, when the Assessors immediately expressed themselves perfectly satisfied, and returned a verdict for the plaintiff, damages £26, intimating at the same time, their desire that His Honor would adopt the proper steps to bring the defendant, Troy, and the two witnesses, Bradley and Lawry, to justice.

Counsel for the plaintiff then rose, and stated, that he was instructed to move that His Honor would direct the committal of Troy, Lawry, and Bradly, to answer the charge of forgery to be preferred against them.

Mr. Justice Dowling immediately directed the parties to be taken into custody, and committed to gaol to answer such charges as the plaintiff might be advised to bring against them.

Troy and Bradly were apprehended on the instant.  Lawry, having left the Court, the Judge's warrant was issued in the course of the evening against him, but he has not yet been found.

Counsel for the plaintiff, Mr. Rowe; for the defendant, Mr. Williams.

The trial lasted from ten o'clock in the morning, till six in the evening.[1 ]


[1 ] On 21 October 1828, Troy and Bradley were both hanged for forgery: see R. v. Troy and Bradley, 1828.

Published by the Division of Law, Macquarie University