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

Charleton v. Eckford [1829] NSWSupC 76

promissory note - judicial notice, capital punishment of plaintiff

Supreme Court of New South Wales

Dowling J., 10 December 1829

Source: Sydney Gazette, 12 December 1829[1 ]

 

This was an action of a promissory note, payable by the defendant to the plaintiff.

Mr. Keith put the note in evidence, and called a witness who proved the signature of the defendant.

This was the plaintiff's case.

Mr. Rowe, for the defendant, addressed the Assessors, and stated that this was the most extraordinary case ever brought into a Court of Justice; inasmuch as the plaintiff had been hanged before the action was commenced.  His Honor would recollect that the plaintiff was tried before him at Hunter's River, and sentenced to death for horse-stealing --

Mr. Justice Dowling -- I cannot take judicial knowledge hat [sic] plaintiff was hanged. (Laughter)

Mr. Rowe -- Then, your Honor, I must call witnesses to that fact.

E. J. Keith, Esq. examined by Mr. Rowe -- Pray, Sir, do you know where your client is now ?

Mr. Justice Dowling -- Can you answer that question, Mr. Keith ? (Loud laughter.)

Mr. Keith -- I cannot.  He may be at Hunter's River, for what I know.

Q. -- Do you not know that he was hanged for horse-stealing ?

A.--- I do not.  I have heard that a man named Charlton was executed, but I did not see him hanged, nor do I know he was the same who is plaintiff to the present action.  I had my instructions from Rapsey and Mitchell.

G. L Poignard, Esq examined --- I was concerned, in conjunction with Mr. Kerr, in defending a man name Charlton, tired for horse-stealing at the assizes at Hunter's River.

Q.  -- Was he not hanged ?

A. -- I believe he was, but I did not see him hanged.

Q. -- Was he found guilty ?

Mr. Justice Dowling --- You must prove that by the record.

Q. -- Don't you know that this very note was given in payment for a horse which was afterwards proved to be stolen ?

A.--- No, I do not know any thing of the sort.

Mr. Rowe stated that he had no other evidence to produce.

The learned Judge told the Assessors that the main point in this case, namely, the acceptance of the defendant, had been established.  With respect to the defence set up, there was no proof of the identity of the plaintiff with the man who was said to have been executed; and, for all the Jury knew, he might then be alive and well.

Verdict for the plaintiff.

 

Notes

[1 ] See also Australian, 16 December 1829.  This was continued in 1830, under the name Chandler v Eckford, 1830.

Published by the Division of Law, Macquarie University