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

R. v. Sullivan [1839] NSWSupC 38


Supreme Court of New South Wales

Dowling C.J., 27-28 May 1839

Source: Sydney Herald, 29 May 1839[1] 

SUPREME COURT -- Criminal Side.

MONDAY -- Before the Chief Justice and a Military Jury.

Owen Sullivan and Cornelius Leary were indicted for forging a will in the following words:--  ``In the name of God, amen.  Anville Creek, 25th February, in the year of Our Lord one thousand eight hundred and thirty-nine; now in my sober and perfect senses, this I make my last and dying will: first, I bequeath my soul and body to God.  Second, that Patrick Fitzgerald and Owen Sullivan is to bury my body in the roman Catholic church in a Christian-like manner after the burial expenses of my funeral and My Death that Patrick Fitzgerald and Owen Sullivan is to collect about one hundred and fifty head of Cattle branded T.C. and three head of horse cattle branded PC and also eight working oxes defferently [sic] branded, one Plough, Bowes and Yoaks and Chains complete and also eighty acres of land more or less that Patrick Fitzgerald and Owen Sullivan is to devide [sic] horn cattle, horses and land in two equal parts with one another the land to be devided between them after Cornelius Leary is lease or time is expired, also house and furniture and also that the said Patrick Fitzgerald and Owen Sullivan is to go to Mr. Dawsons for the price of two fat Bullocks that I sold him for to help for the funneral [sic] expenses; also I bequeath to Patrick Fitzgerald exclusive of the above property Seventeen Pounds that Henry Thomas owes me.  Signed and Sailed and delevered [sic] this this [sic] twenty six day of February 1839.  Patrick Cahill.  In the presence of Cornelius Leary and Mary Healey."

The principal witness in the case was a man named Fitzgerald, who arrived in this Colony as an emigrant by the ship Magistrate.  He stated that many years ago in Ireland, Cahill was about to be married to his sister, but he was transported for whiteboyism; upon arriving in this Colony Cahill invited him to go to his place near Maitland to live; he went there, and in February last went out with Cahill to cut down a tree which fell upon Cahill, and injured him so much that it rendered him insensible; the body was conveyed to the house.  Leary who resided in the house said to Fitzgerald that it would be a pity that Government should get the property, and they had better make a will, and as it was known that Leary and Cahill had quarrelled, it would not do to leave any property to him, but it could be left to Fitzgerald and a man named Sullivan, in the employment of Mr. Windham, but who was stopping at Cahill's, and the property could be divided into three shares afterwards.  Leary, who was a man of some education drew up the will, but for fear his handwriting should be known it was copied by Fitzgerald; Leary signed Cahill's name to it; and Mary Healey who cohabited with him witnessed it.  They then went to the room where Cahill was lying insensible and read the will over to him, and put a pen into his hand and laid the will before him, and Leary observed that all the devils in hell could not defeat them.  Fitzgerald admitted that at the inquest he swore that Cahill was not insensible for some time after he received the injury, and that he made the will before he became so.  There was a great deal of corroborating evidence; it was positively sworn that the signature to the will was not in Cahill's handwriting, and a surgeon deposed that from the nature of the injury Cahill must have been insensible from the moment he received it.  The Jury returned a verdict of guilty.  His Honor immediately passed sentence of death upon the prisoners, and told them them [sic] they could receive no mercy.

TUESDAY. -- Before the Chief Justice and a Military Jury.

Margaret Healey was indicted for aiding and assisting Owen Sullivan and Cornelius Leary, in forging the will of Patrick Cahill.  The evidence in the case was very similar to that given in the previous one.  The Jury without retiring from the box returned a verdict of guilty. -- Death Recorded.  His Honor said he had only forborne from passing sentence of death, because he believed that she had been influenced by her guilty paramour, but she must be prepared to pass the remainder of her days in a foreign land.

The Attorney-General signified his intention of prosecuting Fitzgerald for perjury.



[1]  See also Australian, 30 May 1839.

Published by the Division of Law, Macquarie University