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

Wright v. Fretz [1847] NSWSupC 60

death, proof of, signature, secondary evidence

Supreme Court of New South Wales

Dickinson J., 27 November 1847

Source: Sydney Morning Herald, 1 December 1847, in Supreme Court Collection, Vol. 2, p. 28

WRIGHT v. FRETZ AND ANOTHER.

HIS HONOR Mr. Justice THERRY delivered the following judgment in this case:-

The objection taken to the evidence of several witnesses in this case is, that it is only secondary evidence of the death of one Michael M'Auliffe, an attesting witness to a deed, and that better evidence could be obtained. In ordinary cases, when the individual in question is dead, the secondary evidence becomes admissible is, the usual proof of his burial, the certified extract from the parish registry, and some evidence of identity. But this is not always necessary, sometimes mere affidavits, without the register, have been held sufficient ((Carrington v. Cormack, 2 Simon, 569.) And late decisions show by the cases collected in Gresly on Evidence, p. 178, that where the evidence is not of the first importance, no very strict diligence of search is demanded, particularly when the witness is only required to declare whether he wrote or did not write a signature to a paper produced, and other witnesses can swear to the handwriting. It is not necessary that an attesting witness should be dead to admit secondary evidence of his handwriting. Absence from the country, and instances of less legitimate excuse are to be found which have been deemed sufficient to let in such testimony. The general and reasonable rule is, as stated in Crosby v. Percy, 1 Taunton, p. 365, that when upon fair, serious, and diligent enquiry, an attesting witness is not to be found, evidence of his handwriting is admissible. And so with respect to a person alleged to be deceased, as stated by the Chief Baron in the case of Benson v. Olive, 2 Strange, p. 920, "if proper search or inquiry had been made and no account could be given of him" secondary evidence of his decease should be received. In the present instance such search --- sufficient to show reasonable diligence --- has been made. Inquiries are made by persons who knew M'Auliffe well at the last place where he was known to reside. These inquiries lead these persons to the General Hospital, and the result of the inquiry there is, that a person of that name, who was in the Hospital about 1833 or 1835, about the time he was last seen, died in the Hospital. This is shown by an entry in the books of the Hospital, and the belief of the witnesses on oath that this is the same M'Auliffe with whose handwriting they are acquainted, and that his name attesting the deed is in his handwriting. This in my opinion, then, is such evidence, as in the absence of any imputation of evasion or suggestion of any attempt at unfairness of any kind ought to be received. Whether it is such an inquiry as, in the case of a question of title, would be deemed sufficient evidence of the death of a party is not a question with which I have now to deal, but for the purpose of proof in the present instance, it should not be excluded. The objection, therefore, must be overruled, the evidence received, and the deed admitted to proof.

 

Published by the Division of Law, Macquarie University