I have no idea of Fanny's initial movements after the final court session late in 1875. Free from her hated husband, and with her marriage settlement lawfully hers and giving her some financial security, she most likely booked a passage for England as soon as she possibly could.
With the divorce case having been covered by the newspapers Australia-wide- albeit sympathetically to Fanny- she would have wished to distance herself from the notoriety of Melbourne society.
Her sister Rebecca and her husband Dr. William Farrage( who had married in Melbourne in 1868) had departed for England in 1873 on board the ship 'Agamemnon'.Because Fanny had reverted back to her maiden name of "Smith", I have been unable to distinguish her from the many other Smith passengers who boarded ships for England in the period 1875-1879, the latter year being the one in which we can pick up Fanny's story again.
In the March 1/4 of 1879,in Kensington,London, Fanny Jane Smith married Thomas Stocker, a widowed farmer some 14 years her senior. Thomas had been born in Devon in c. 1824, the son of Thomas Stocker, foreman in Her Majesty's Dockyard.
On February 11, 1851, Thomas Stocker, a draper of St. Luke's, Chelsea, married Matilda Binnington Brightman, the daughter of William Brightman, deceased.At the time of the 1851 census which was taken the following month, Thomas and his new bride were living at Sloane Street, Chelsea. Thomas was the head of the household, aged 28, and a draper in a firm employing 2 men, 2 women and one boy. His wife Matilda was two years older than him. Also in the house were two women servants and two male draper's assistants.
Matilda bore Thomas the first of two children the following year. On July 2, 1852, in their Sloane Street home, Thomas Stocker was born. Their second child did not arrive until over ten years later...Frank Edwin Binnington Stoker was born on September 10, 1863, in the Newark registration district.
In the 1861 census, Thomas and his family had moved from London, and he was working as the manager of a plaster works at Newark On Trent in Nottinghamshire. He is incorrectly recorded as 'Francis Stocker', but there is absolutely no doubt that it is Thomas...
South Parade, Newark On Trent.
Francis Stocker/ head/ 37/ manager of plaster works employing 30 men and boys/ born Plymouth, Devon.
Matilda Stocker/ wife/ 40/ born Great Yarmouth, Norfolk.
Thomas Stocker/ son/8/ scholar/ born London
Plus one female servant.
Ten years later, the 1871 census found the Stocker family relocated yet again, this time to Cornwall:
North Tamerton, Cornwall.
Thomas Stocker/ head/48/ farmer of 195 acres employing 5 labourers/ born Devonport, Devon.
Mat Stocker/ wife/ 50/ born Gorlston, Norfolk
Thomas Stocker/ son/ 18/ farmer's son/ born London
Frank Stocker/ son/ 7/ born London
Plus 2 female and 2 male servants.
Matilda Binnington Stocker died in the June 1/4 of 1878, aged 57 years.Her husband did not remain a widower for long....in the March 1/4 of 1879, he married Fanny Jane Smith. How the couple met is a story I would love to know, and even more so how their marriage fared.
Fanny was in her 40th year when they married, and Thomas was about 55, so it is not surprising that there were no children born of the union. Her childless state is even less remarkable when considering Fanny's gynaecological problems, history of hysteria and supposed virginal state going into her second marriage.
I don't know if Thomas Stoker had any more luck in the nuptial bed than his predecessor Joseph Bishop, but less than three years after their marriage, at the time of the 1881 census, Fanny and Thomas were living apart...Thomas was on the family farm at Winscott in Devon, and Fanny was in a boarding house in London.
1881: Winscott, Pyworthy, Devon.
Thomas Stocker/ head/ married/ 57/ farmer/ born Devonport.
Thomas Stocker/ son/ unmarried/ 27/ farmer's son/ born London
Frank Stocker/ son/unmarried/ 17/ boy at school/ born London
Two servants.
30 & 31 Fitzroy Square, Tottenham Court, St. Pancras, London
Fanny J Stocker/ boarder/ married/ 37/ born Burley, Rutlandshire.
She was boarding in a boarding house run by Emily Langford, a 46 year old widow.
Interestingly, Fanny's sister, Rebecca Farrage, who had been widowed in 1876, was living with their widower father, Robert Smith, at Ilfracombe in Devon. I wonder why Fanny chose to board in London rather than live with her sister and father if her marriage to Thomas had not been successful? Perhaps they didn't approve of her track record or marital behaviour?
Apart from a separation from her husband after only several years of marriage, another common factor in Fanny's first and second marriages became apparent as I began to accumulate information on Thomas Stocker's life...just as Joseph Bishop's Soho Foundry business turned belly up during the first year of his marriage to Fanny, so did Thomas Stocker hit business difficulties in the twelve months after his wedding. The London Gazette of July 2, 1880, states;
"Bankruptcy Act: County Court of Devonshire. Liquidation instituted by Thomas Stocker of Winscott House, Pyeworthy, Devon, and of east Venton, parish of North Tamerton, Cornwall, Gentleman and farmer."
While Fanny perhaps can't be blamed for these business failures, they most likely contributed to her decision to leave both marriages when financial difficulties hit.
Whatever the relationship between Fanny and her second husband, it was cut short by Thomas Stocker's death in 1887.
By 1891, Fanny and her sister Rebecca were living at the same boarding house in Bath...
13, 14 and 15 Barnett St, Private Hotel, Walcott, Bath,Somerset.
Fanny J. Stocker/ widow/ 35/ Living on her own means/ born Burley, Rutland
Rebecca Farrage/ widow/ 35/ living on her own means/ born Burley Rutlandshire.
Fanny seems to have been totally incapable of owning up to her real age..as well as decreasing her age in court documents in her divorce case against Joseph Bishop, she never even came close to telling the truth in census returns once she went back to England. For example:
1881: Said she was 37 when she was actually 43
1891: Said she was 35 when she was 53
1901: Said she was 45 when actual age was 63
1911: recorded age as 58 but was 73.
In 1901, Fanny Stocker was living in three rooms of a house at Warrior Gardens in Hastings, Sussex.She was noted as being a 45 year old widow who was living on her own means. The Apps family were living in the main body of the house, and as well as Fanny renting out rooms, two other single women, both living on their own means, were also renting out rooms in the same house.
1911 saw Fanny still in Hastings, at 36 Warrior Square, living in a boarding house with 3 males and 8 females.Information given was Fanny Jane Stocker, widow, 58 years, boarder, living on private means, born in Devon.
The illustrious life of Fanny Jane Smith/ Bishop/ Stocker finally came to a close in 1917...she died at Hastings in the March 1/4 of 1917, aged 78 (correct age at last!!!)
Her sister Rebecca Elizabeth Farrage died just months before Fanny. She died at her home, 'Melba', Bath Road, Chippenham, Wiltshire, on August 3, 1916.
Monday, March 29, 2010
Sunday, March 28, 2010
Joseph Bishop and Fanny Smith Time Line
TIMELINE OF BISHOP VERSES BISHOP DIVORCE CASE.
March 30, 1864: marriage of Joseph Bishop, 58, and Fanny Jane Smith, 26. Age difference of 32 years. Both fibbed on their marriage certificate- Joe said he was 46 and Fanny 22.
Joseph Bishop & Co takes over the Soho Foundry in Ballarat.
April to July 1864: Joseph and Fanny travelling in New Zealand. Upon their return to Melbourne, they resided in a house in Caroline Street, South Yarra.
1865: Moved into a house in Lansdown Terrace, St. Kilda.
31 July, 1866: “We understand that the bills of Messrs Joseph Bishop & Co, iron founders, Ballarat, have been returned dishonoured. A meeting of creditors will be called in a few days.”
August 2, 1866: “Messrs Joseph Bishop & Co of Ballarat, whose suspension we noted a few days ago, have called a meeting of their creditors for Friday next. The total liabilities are said not to be in excess of ten thousand pounds.”
August 6, 1866: “A meeting of the creditors of Messrs Joseph Bishop and Co, iron founders, Ballarat, resulted in the assignment of the estate to Messrs Jenner and H. Henty, for the general benefit. The statement submitted to the meeting showed liabilities amounting to 9,141 pounds and assets estimated at 8,020 pounds. The contingent liabilities amount to five thousand pounds.”
September 1866: Advertisements in the Argus newspaper for the sale of Soho Foundry, Ballarat-land, machinery, buildings and equipment.
March, 1867: Fanny Jane Bishop sails for England on board the ‘Holmsdale’. She remains in England with her parents in Devon for two years.
June 27,1868: Dr. William Farrage, Fanny’s doctor, marries her sister, Rebecca Elizabeth Smith, in Melbourne.
November 1869: Fanny Jane Bishop arrives back in Melbourne on board the ‘Agamemnon’.
14 January, 1870: Notice appears in the Argus re. unclaimed dividends in the estate of Joseph Bishop & Co, Ballarat.
January 1870: Fanny Bishop moves back into her husband’s house at Number 3 Nepean Terrace, Gipps Street, East Melbourne.
August 14, 1870: Fanny Jane Bishop again leaves her husband. A deed of separation is drawn up by Joseph’s solicitor Frederick Moule and executed.
July 23, 1873: First document filed by “Fanny Jane Smith falsely called Bishop” filed in her quest to have her marriage with Joseph Bishop declared null. Fanny’s address is “12 Jolimont Road, Melbourne”.
July 28, 1873: Affidavit of Fanny Bishop, with some modifications made from her original (i.e. no reference to the cause of death of Joseph bishop’s first wife)
September 9, 1873: Joseph Bishop answers the statements made by Fanny in her petition.
October 15, 1873: Redmond Barry assigns the doctors to examine both Fanny and Joe...Doctors Lawrence J. Martin and Edwin M. James to “examine the parts and organs of generation of Fanny Jane Bishop the petitioner in this cause and report in writing whether she is or is not a virgin and hath or hath not any impediment on her part to prevent the consummation of marriage”, and Doctors George B. Halford and William Garrard, surgeon, of Melbourne to “examine the parts and organs of generation of Joseph Bishop the respondent in this cause and to report in writing whether he is capable of performing the act of generation and if incapable of so doing whether such his impotency can or cannot be removed by act or skill.”
November 25, 1873:Affidavit from Fanny’s side declaring that “The Petitioner has been advised by counsel that William Farrage formerly of Melbourne, Doctor of Medicine, but now of parts beyond the Colony and out of the jurisdiction of this Honourable Court and who is not expected to return to this colony for upwards of 12 months from the time of swearing this affidavit, is a material witness for the Petitioner in this suit and that she cannot proceed safely to the hearing of it without his evidence.”
November 29, 1873: Sir Redmond Barry agrees for Dr. Farrage and Dr. Charles Howell Collins of Chew Magna, Somerset, to be interviewed in England and orders their finding be sent back to Melbourne for the trial.
Wednesday, April 29, 1874: “The following is a list of cases set down for trial during the divorce and equity appeal sittings commencing on the 1st May - Divorce Sutton v Sutton Russell v Russell, Bishop v Bishop.” –Argus.
May 2, 1874: “ Supreme Court- Old Court House. Friday May 1.
Divorce and Matrimonial Causes and Appellate Jurisdiction.( Before their Honours Mr. Justice Barry and Mr Justice Fellows).
Bishop V Bishop: Mr. Ireland, Q.C, (with Mr. Lawes) applied for an order that this case should be tried before a jury. The petitioner sued for a decree of nullity of marriage. The application was opposed by Mr. Webb on behalf of the respondent, and it was eventually adjourned until 10 o’clock on Monday next.” –Argus.
Monday, May 4, 1874: “ Law Notices This Day. Supreme Court. (Before their Honours Mr Justice Barry, Mr Justice Fellows and Mr Justice Stephen).
Bishop V Bishop (application for a trial by jury).
Monday, March 18, 1874: “Law Notices This Day. Supreme Court. New Court House. (Before His Honour Mr Justice Barry and a Special Jury of twelve.) Divorce and Matrimonial Causes Jurisdiction- Bishop V Bishop.” -Argus
"In the Divorce Court today the case of Bishop v Bishop, in which the wife prays for a dissolution of marriage, on the ground of her husband's incompetency, was partly heard.The petitioner wished the case to be heard in private, but the husband objecting this could not be done. Her position in the witness box was a most painful and distressing one.We are compelled to withhold our report, as His Honor Mr Justice Barry directed that no reports should be published until the case was concluded."
Tuesday, May 19, 1874:
"The hearing of this case was resumed at about 2 p.m today when Mrs Bishop continued her direct evidence.We are requested to state that yesterday Mr. Ireland, Q.C., acknowledged he was in error when he said that an application to have the case tried in Chambers was resisted by the respondent.We may also state that it is not our intention to publish the evidence,even when the case is concluded."
"The hearing of evidence in the suit of Bishop v Bishop in the Divorce Court was continued today before His Honor Mr Justice Barry and a jury, but the court had to be adjourned for some time, in order to allow His Honor to be present in the Legislative Council chamber to open Parliament.As there appears to be some doubt as to why the evidence in this case is not published, we may as well state the that the petition is for the marriage to be declared void, on the ground of permanent impotency on the part of the husband.The evidence is, of course, to a very great extent, totally unfit for publication, but subsequent to the case being opened it was agreed between the parties to have a private hearing only.The court was therefore cleared, and in pursuance of the custom in vogue in reference to the proceedings of the Divorce Courts in London the Press has, in deference to the wish of the preceding Judge,abstained from publishing the evidence.It is not likely that the case will be concluded for some days, but of course the result will be made known."
Argus: “ Mr Justice Barry and a Special Jury of 12 were engaged yesterday in trying a divorce suit of Bishop V Bishop, in which the petitioner sues for a declaration of nullity of marriage. The parties were married some 14 years ago, the petitioner then being 20 years of age and the respondent 44. For some years past they have lived separate. Mr Ireland, Q.C., and Mr Lawes are for the petitioner, and Mr Higinbotham and Mr Webb for the respondent. The court was cleared for the hearing of the case. The evidence will not be concluded for the next two or three days.”
Wednesday May 20, 1874.
Argus: “ The divorce suit of Bishop V Bishop was continued in the Supreme Court yesterday, before Mr Justice Barry and a special jury of twelve. The respondent while giving her evidence got into a state of hysterics, and it was some time before her examination was resumed. The case will probably last during the remainder of the week.”
Port Phillip Herald: "BISHOP v BISHOP. The hearing of this divorce case was continued today before Mr Justice Barry and a special jury of twelve.Although the proceedings are conducted in the new Supreme Court House, they are virtually carried on in Chambers,the building, for the present, being converted into Justice Barry's private apartment. A policeman is stationed on each door to prevent any persons from entering, except those who have actual business in the case, or barristers.
The approaches to the side door are blocked up day after day with persons anxious to obtain a glimpse of the petitioner through the window in the door. Mrs Bishop occupies a chair on the floor of the court, between the jury and the Judge, and Mr Bishop sits at the lawyer's table, opposite his counsel.
The petitioner is a nice-looking, lady-like and well-educated person, who states she is twenty nine years of age. The respondent gives his age as 53. Few women, it may be said, have found themselves in a more painful and trying position. The petitioner in this case, and the community, may be congratulated on the proceedings in the matter being carried on with closed doors, and the whole of the evidence being withheld by the public press.
Last evening his Honor sat after dark, and candles had to be procured, which only served to make the darkness visible.And, by the way, can anyone explain why gaslight seems to be invariably eschewed in English Courts of Law? Westminster Hall is without gas,and so are the Four Courts at Dublin.
During her examination, Mrs Bishop frequently exhibits dispositions to hysteria.The lady, however, was treated with great indulgence, and under the circumstances, with courtesy by counsel on both sides.The witnesses examined today were Doctors Ford, Bird and Barnett, who gave evidence for the petitioner."
THURSDAY,MAY 21, 1874.
Argus: “ The divorce suit of Bishop v Bishop was proceeded with yesterday in the Supreme Court before Mr Justice Barry and a special jury of twelve. The evidence for the petitioner was closed and the examination of the respondent was commenced but was not concluded when the court adjourned till next day.”
PORT PHILLIP HERALD: " The divorce case, Bishop v Bishop, was continued today, in private, before Mr Justice Barry and a jury.The whole of the day, up to the time of our going to press, was occupied with the continuation of the examination of Mr. Bishop, the respondent, by Mr Higinbotham and his cross examination by Mr Ireland Q.C. The respondent was still in the box when our reported left. It is likely that the case will extend over the whole of tomorrow."
Friday May 22, 1874
ARGUS: “The divorce suit of Bishop v. Bishop was continued yesterday in the Supreme Court. Evidence was given on behalf of the respondent. A number of medical witnesses will be examined to-day, and the case will probably be concluded in the course of the afternoon.”
PORT PHILLIP HERALD: "BISHOP V BISHOP: The hearing of this divorce case was continued today in the new Supreme Court House before his Honor Mr Justice Barry and a Special Jury of Twelve.The doors of the court were, as on the previous days, closed and kept by policemen.The witnesses examined today were Professor Halford,Mr Garrard, Surgeon, Dr Martin, Collins Street,and Dr. Gunnt,who gave evidence for the respondent. It was stated that some further evidence could be adduced on behalf of the petitioner.It is possible that the case will be concluded this evening, but the probability is that it will run into tomorrow."
Saturday, May 23, 1874.
Argus: “The hearing of the divorce suit of Bishop v. Bishop was continued in the Supreme Court yesterday, before Mr. Justice Barry, and a special jury of 12. The evidence for the respondent was concluded, and as it was impossible to finish the case yesterday, one of the jurors asked that it should be adjourned over Saturday, as he (being a Jew) had conscientious scruples against transacting business on Saturday. The case was accordingly adjourned till Wednesday next.”
Mercury, Hobart: May 23, 1874
Suit of Bishop v. Bishop was commenced on Monday, in the Supreme Court, sitting in its matrimonial causes jurisdiction, before Mr. Justice Barry and a special jury of twelve. The wife is the petitioner, and, seeks to be divorced from her husband, who was lately a partner in a leading mercantile firm in Melbourne. It is one of the most painful cases ever brought into court, and invites many medical questions. Mrs. Bishop was in the box the whole of the day, and made some extraordinary revelations. His Honor the presiding judge made a request that the Press, so far, should not publish the particulars. On Tuesday, Mr. Ireland, who appeared with Mr. Lawes for the petitioner, having on the previous day concluded his examination-in-chief of Mrs. Bishop, Mr. Higinbotham yesterday commenced to cross examine her on the painful testimony she gave on Monday. Mrs. Bishop was much affected and embarrassed by the ordeal she had to undergo, and on the occasion, shortly after the commencement of the cross -examination, she was seized with a fit of hysterics, became insensible, and had to be carried into one of the inner rooms of the court. Dr. Garrard, who was present, attended to her, and in about ten minutes she was sufficiently recovered to be able to return to the court, where she and a lady friend who accompanied her were accommodated with seats. Afterwards her statements as to facts in answer to Mr. Higinbotham were very clear, considering the circumstances under which she was placed. The learned counsel, in his cross-examination, displayed the utmost possible delicacy which his unpleasant duty allowed. It is not likely that the case will be concluded today. As on Monday, the general public were not admitted.”
Wednesday, May 27, 1874.
Port Phillip Herald: " BISHOP V BISHOP:The hearing of this divorce case was continued today in private before his Honor Mr Justice Barry and a special jury of twelve. Messrs Ireland, Q.C, and Lawes appeared for the petitioner (Mrs Bishop) and Messrs Higinbotham and Webb for the respondent.At the insistence of a juror,Mr Garrard,surgeon, one of the witnesses for the respondent, was recalled and gave some further testimony.Mr. Higinbotham then addressed the jury on behalf of the respondent."
Thursday May 28, 1874.
ARGUS: "The hearing of the divorce suit of Bishop v Bishop was resumed yesterday in the Supreme Court before Mr Justice Barry and a special jury of twelve. Mr Higinbotham addressed the jury for the respondent and Mr Ireland replied for the petitioner. At the close of the address of the latter the further hearing was postponed till next day. The following order has been published in connexion with the case – “The parties having agreed that this cause should be heard in camera, I do order that no portion of the evidence or proceedings be published. Dated the 18th May I874. Redmond Barry.”
PORT PHILLIP HERALD: "BISHOP V BISHOP: The hearing of this case was continued today before Mr. Justice Barry and a jury of twelve.His Honor was engaged up to twenty five minutes before two o'clock in charging the jury.At the hour mentioned, the jury retired to consider their verdict."
Friday, May 29, 1874.
Argus: “The divorce suit of Bishop v Bishop was brought to a close yesterday in the Supreme Court. The petition was filed by Mrs Bishop praying for a declaration of nullity of marriage. The petitioner came to this colony from England in 1860. In 1864 she married the respondent, his age being then 59 and hers as "she said 20 but, as another witness said, 26. There was a sum settled on her producing from £150 to £200 per annum. In 1867 she went to England, returned to this country in 1869; lived with the respondent for a few months then separated from him and after a time instituted this suit. The case was tried before a special jury of 12. Mr Justice Barry summed up yesterday. The jury returned about 2 o clock. There was some doubt in the first instance as to whether a verdict of three fourths of the jury could be taken but the difficulty was overcome by each party consenting to accept such a verdict. At 6 o clock the jury returned into Court and the foreman announced that 11 of them had agreed to a verdict for the Petitioner. The verdict was therefore recorded in favour of the petitioner.”
MAY 30, 1874:
MAITLAND MERCURY: "News From Melbourne.The case of Bishop v Bishop, in the divorce court, still continues with closed doors. A report of the proceedings will be privately published.500 subscribers have guaranteed to purchase half-a crown copies.
(Evening news)His Honor Sir Redmond Barry, in anticipation of the publication of the proceedings in the divorce suit Bishop v Bishop, has issued an order to prevent that contingency.It remains to be seen whether such an order applies to publication after trial."
JUNE 10, 1874.
PORT PHILLIP HERALD. "Bishop V Bishop. A Professional Disagreement.
The recent divorce suit of Bishop v Bishop is now engaging the attention of the Law Institute.Mr. Clayton, solicitor for the respondent,(NOTE:Mr Clayton was actually solicitor for Fanny Bishop, the petitioner) has forwarded the following documents to the President of the Institute, and the accusations were considered by the Council of the Institute yesterday afternoon:-
(COPY) 28 Great Collins Street West,Melbourne, 2 June, 1874.
To the President of the Law Institute of Victoria,
SIR- I beg to bring under the notice of the Council of the Law Institute a charge of unprofessional and ungentlemanly conduct against a member of the profession- Mr. F.G Moule.
The facts are shortly as follows:-Mr Moule had for some years acted professionally for Mrs Bishop( the petitioner in the divorce suit of Bishop v Bishop), having prepared her marriage settlement and subsequently a deed of separation between her and her husband.
Shortly before the commencement of the suit, Mrs Bishop consulted him as to the different grounds on which a divorce could be applied for, and particularly as to whether it could be obtained by the consent of the parties. Mr Moule informed her that she would have to swear there was no collusion in the matter, and eventually, at her request, made a proposal to Mr Bishop to the effect that if his wife commenced proceedings and he did not defend them, she would make him a pecuniary allowance.
This proposal fell through, and Mr Moule declined to act further in the matter.
Mrs Bishop then commenced her suit, and on the trial Mr Moule was subpoenaed by the respondent to produce the settlement deed, and then voluntarily gave evidence divulging the proposal and conversations between himself and Mrs Bishop above alluded to.
You will observe from the copy of the evidence sent herewith that Mr Moule excused himself by stating that he advised Mrs Bishop in the matter as a friend.I venture to suggest for your consideration whether in that case his conduct is not more dishonorable and unjustifiable than if he had advised her professionally.
At the close of Mr Moule's evidence under cross examination by Mr Ireland, he said "I might tell you more than you like about your client", for which statement he subsequently had to apologise to the court before leaving the box.
I deem it right to bring the foregoing facts under your notice, especially as I observe, on reference to the rules of the Institute, that Sec. 3 states,amongst other things, that the objects of the Institute are "to preserve and maintain the integrity of the profession" and "to suppress any illegal and dishonorable practice".
I enclose a copy of Mr. Moule's evidence,as taken down by Mr Lawes,also copies of two letters written by Mr Moule to Mrs Bishop, showing, I think, clearly that the relationship of attorney and client existed between them.
I have the honor to remain, Sir, your obedient servant.
______________________________________________________________________
Market Street, Melbourne,
26th July, 1870.
Dear Madam,
I have had the deed prepared, but should like to read over and explain the draft to you before it is copied for signature. have you seen Dr. Farrage to know if he will act as your trustee? Yours truly,
Frederick G. Moule.
Mrs Bishop, 3 Napier Terrace,Gipps Street.
______________________________________________________________________
Market Street, Melbourne. 26th August, 1870.
Dear Madam,
I send your part of deed of seperation as requested.The charges against you amount to ten pounds ten shillings.I am, Yours truly, Frederick G. Moule.
Mrs Bishop, 156 Collins Street East.
__________________________________________________________________
Smith (Falsely called Bishop) v Bishop.
Frederick George Moule examined by Mr. Higinbotham. Mr Smith is the brother of Mrs Bishop, and he is the trustee, and I am agent for him. I know petitioner and respondent. I remember petitioner and respondent coming to my office with Mr Fairchild as to a deed of seperation (objection to conversation about period of seperation). I do not remember whether I ever acted acted for Mrs Bishop since seperation. Jesse fairchild resigned and Mr William Smith has been substituted. I have given legal advice as a friend to Mrs Bishop. I did not refuse to act for her until she had disclosed what she wished me to do. She did not consult me on professional matters.She asked me to act for her as to divorce. I refused to act for either party. Mrs Bishop used to come on friendly terms to me about rents.. I bore a message from her to the respondent. This was after the seperation, after I had told her I would not act for her or Mr Bishop. The message was "If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year, or make some division of the capital."
I said that couldn't be done, unless you perjure yourself; you have to swear in your affidavit that there was no collusion between yourself and him. The adultery was stated to be with some maid servant in the house. I cannot remember the nature of the cruelty. She meant the seperation as the desertion. I told her I didn't think the seperation was a ground.She said she would consult her solicitor. The converstation was some months before she went to Sydney. That was all that took place. She came afterwards and said she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.After she returned, she asked me to make another proposal to Mr Bishop on other grounds, which I don't feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.
Cross-examined by Mr Ireland: I told Mr Bishop all this as I was told by Mrs Bishop to tell him.She borrowed "McKean on Divorce" from me. I believe I opened McKean. I think I told her that adultery was not sufficient without cruelty. Within the last few days I told Mrs Bishop I was going to be a witness.I did not say to her what I was going to say.I had no subpoena but that duoes tuum. I might tell you more that you like.I do not think it right to have said what I just did."
Saturday, June 13, 1874.
Argus: “We understand that Mr Clayton, solicitor for the petitioner in the late divorce suit of Bishop v Bishop, being dissatisfied with the decision of the council of the Law Institute with reference to the charge of unprofessional conduct made by him against Mr Moule, solicitor, has determined to bring the matter before the Supreme Court for the opinion of the judges and has retained counsel in support of the application.”
Saturday, July 4, 1874.
Argus: “The divorce suit of Bishop v. Bishop, which attracted so much attention a few weeks ago, has been set down for a final hearing on the 28th inst., when the petitioner will apply for a declaration of nullity of marriage.”
Tuesday July 28, 1874.
PORT PHILLIP HERALD: "BISHOP v BISHOP. PROCEEDINGS UNDER THE DIVORCE AND MATRIMONIAL JURISDICTION. MONTION TO ENTER UP JUDGEMENT FOR NULLITY OF MARRIAGE. QUESTION OF COSTS.JUDGMENT RESERVED.
His Honor Mr Justice Barry sat this morning in the new Supreme Courthouse in Divorce and Matrimonial Causes Jurisdiction, for the purpose of concluding the case of Bishop v Bishop. Mrs Bishop, nee Smith, sought to have her marriage with the respondent(late a wholesale ironmonger,carrying on business in Elizabeth Street, Melbourne) declared null. Certain questions of fact were not long since decided by a jury in favour of the petitioner.
Messrs Ireland, Q.C, and Lawes appeared for the petitioner, and Mr. Webb for the respondent.
Mr. Lawes formally moved that judgment for the nullity of the marriage should be entered up.
Mr. Webb, after the decision of the jury, did not object to judgment being recorded, but wished to mention the question of costs.He said that Mr. Bishop was possessed of nothing but the fifty pounds a year which his wife allowed him from the settlement that he had made upon her.If the respondent were ordered to pay the costs, he would probably be obliged to go into the Insolvent Court.
Mr. Lawes said it was not desired to deal harshly with the respondent, but it should be understood that if the costs were to be paid by the petitioner,Mr Bishop would have to give up all claim to the settlement which Mrs Bishop at the hearing before the jury intimated her willingness to relinquish.Mrs Bishop had no means of paying the costs except from the settlement.
Mr Webb suggested that whoever secured the settlement should pay the costs. Counsel added that if Mrs Bishop consented to give up the settlement, Mr Bishop would guarantee to pay the costs.
His Honor reserved his judgment on the question of the nullity of the marriage and of costs until Saturday morning next."
Wednesday, July 29, 1874.
ARGUS: “(Before his Honour Mr. Justice Barry.)
Bishop v. Bishop.
This suit came before the Court for a decree by the petitioner declaring her marriage with the respondent a nullity.
Mr. Ireland, Q.C., and Mr. Lawes were for the petitioner, Mr. Webb for the respondent.
The case has been tried before a jury, who decided in favour of the petitioner; and the respondent's counsel said that he could not oppose the decree being made, but he submitted that the respondent ought not to pay the costs. On the other hand, it was pointed out that at the time of the marriage some property was settled on the petitioner which at the trial she had offered to give up. If she had to pay the cost of the litigation she ought to be allowed to keep the settled property. Mr. WEBB said that if the property was given up to Mr. Bishop, he would pay the costs.
His Honour reserved his decision, and the Court adjourned till Saturday.”
Wednesday 29 July 1874.
Argus: “The divorce suit of Bishop V Bishop was brought before His Honour Mr Justice Barry yesterday morning. An application was made on behalf of the petitioner for a final decree, declaring the marriage void. The application was not opposed by the respondent, as after the verdict of the Jury, which it was not sought to set aside, there was no other course open but to grant the decree. The question was raised, however, as to who was to pay the costs, as the respondent had no property. At the time of the marriage some property was settled on the petitioner which, at the trial, she said she was willing to give up. A proposition was made that if she paid the costs she could keep the property. His Honour reserved his decision.”
July 30, 1874: Affidavit by Samuel Crisp, in response to a request by Sir Redmond Barry for the financial details of the marriage settlement between Joe and Fanny, states that Joe is at present absent from the Colony and he cannot communicate with him in time to obtain said affidavit.
August 1, 1874.
PORT PHILLIP HERALD: " The divorce case of Bishop v Bishop was brought to a close this morning in the Supreme Court before his Honor Mr Justice Barry, when a decree was formally entered up for a nullity of marriage, as prayed for by Miss Smith, falsely called Mrs Bishop. The parties were ordered to pay their own costs."
Monday, August 3, 1874.
Argus: LAW REPORT.
SUPREME COURT.
Marriage and Matrimonial Causes Jurisdiction.
New Court House,-Saturday August 1.
(Before his Honour Mr. Justice Barry.)
Bishop V Bishop.
This suit came before the Court for a final decree of nullity of marriage.
Mr Ireland who appeared for the petitioner said that the offer he had made, if the decree was assented to, to abandon the settlement made on the respondent was meant seriously though its seriousness had been questioned. As the respondent had declined the offer he contended that respondent had now no right to take advantage of it.
His Honour said that at the time the offer was made he was under the belief it was not meant seriously. As to the case he would make a decree for the nullity of the marriage . In regard to the costs he had examined several cases which showed that the Court had a discretion as to giving costs. The Court took into consideration the husband’s position and whether there were funds available for the costs. In this instance the respondent had no means except what he derived by agreement from his wife’s settlement. There was some discrepancy in the affidavits as to the amount of the settled property, the petitioner stating it at £4 O66 and the respondent at £4 625. The petitioner derived £249 a year from the settlement, out of which she allowed the respondent the pittance of £50 a year. He should order each party to pay their own costs.
Decree for nullity, without costs. The Court adjourned sine die.”
Argus: “Mr Justice Barry on Saturday gave his decision in the divorce suit of Bishop v. Bishop. He granted a decree declaring the Marriage a nullity, but gave no costs, as the husband was without means.”
THursday Evening, September 3, 1874.
PORT PHILLIP HERALD:
BISHOP V BISHOP
-COMPLAINT AGAINST MR. MOULE, SOLICITOR-
In the Supreme Court today, before their Honors Mr. Justice Barry, Acting Chief Justice; Mr. Justice Fellows, and Mr. Justice Stephens, Dr. Mackay moved for a rule nisi calling upon Mr. F.G Moule, solicitor, to answer the matter in an affidavit filed by Miss Fanny Jane Smith (late Mrs. Bishop) charging him with having improperly divulged matter communicated by her to him in a privileged manner as her attorney.
It will be remembered that Mrs Bishop recently obtained a divorce from her husband, Joseph Bishop, late of the firm Bishop & Keep, wholesale ironmongers of this city. Certain questions of fact were decided by a jury, and at the trial Mr. Moule (who did not act for either parties in the suit) was called as a witness for the respondent, when he detailed a message which he stated he received from Mrs Bishop to communicate to her husband.
Today Dr. Mackay read the following sworn note of evidence given by Mr. Moule at the trial, as taken by one of the Counsel in court at the time.
“ W. Smith is the brother of Mrs. Bishop, and he is the trustee under the settlement made by Mr Bishop on his wife. I am an agent for Mr Smith.
I knew petitioner and respondent. I remember petitioner and respondent coming to my office with Mr. Fairchild as to a deed of separation. I do not remember whether I ever acted for Mrs. Bishop since her separation.
Jesse Fairchild resigned, and Mr W. Smith had been substituted.
I have given legal advice as a friend to Mrs. Bishop. I did not refuse to act for her until she had disclosed to me what she wanted me to do. She did not consult me on professional matters. She asked me to act for her as to divorce. I refused to act for either party.
Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the separation- after I had told her I would not act for her or Mr Bishop.
The message was “If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year or make some division of the capital.”
I said “That could not be done, unless you perjure yourself. You have to swear in your affidavit that there was no collusion between yourself and him.”
The adultery was stated to be with some servant maid to the house. I cannot remember the nature of the cruelty. She meant the separation as desertion.
I told her I did not think the separation was a ground. She said she would consult her solicitor. This conversation was some months before she went to Sydney. That was all that ___ ___.
She came afterwards and said that she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.
After she returned she asked me to make another proposal to Mr. Bishop on other grounds, which I do not feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.”
Cross-examined by Mr Ireland, Q.C:
“I told Mr Bishop all this, as I was told by Mrs Bishop to tell him. She borrowed “McKean’ from me. I believe she opened ‘McKean’. I think I told her that adultery was not sufficient without cruelty.
Within the last few days I told Mrs Bishop I was going to be a witness. I did not say to her what I was going to say. I had no ____ but that ___ __. I might tell you more than you like. I do not think it right to have said what I just did.”
Miss Smith’s affidavit commenced by stating that Mr Moule, as agent for the trustees under the deed of settlement, received rents from property investment and paid them over at intervals to ___ ____ in August 1870, he prepared a deed of separation from her ex-husband, for which she paid him ten pounds ten shillings.
She then went to deal with the present subject of the complaint:
“In or about the month of January 1871, I called upon the said Frederick George Moule and asked him- firstly, whether he still acted as agent for the said Joseph Bishop, to which he replied “No”. Since the deed of separation had been signed by the said Joseph Bishop and myself we have passed each other in the street.
I then requested the said Frederick George Moule to inform me what were the general laws relating to divorce. He took up a law book and read from it certain passages, telling me cruelty and adultery were combined and asked “What charges do you consider you have against him?” (meaning Joseph Bishop).
I replied “Only the ___ ____ of a servant giving me notice to leave bedroom(???) the said Joseph Bishop went into her room but I thought nothing of it.
I also said that on the day of the deed being signed, the said Joseph Bishop told me he would take a cottage in the country and ___ the ________ knew.
As regards cruelty, I told him that Dr. Farrage considered my life was in danger by living with the said Joseph Bishop, and that his general unkindness depressed me very much; that the said Joseph Bishop had struck me, but not in the presence of a witness.
The said F.G Moule told me that in some cases words had been allowed to be considered cruelty combined with other charges, and he then said he thought I had not sufficient case.
I asked him if he thought it would be possible to have the case tried privately so as to save publicity. He replied “Only by bribing Mr. Bishop not to appear, and that in that case the Crown would defend it.”
He said I should not have an interview with the said Mr. Bishop, for that would be collusion, but that if it were done through a third person, and I could allow my conscience to make an affidavit to the effect that there was no collusion, and considering that it would only concern ourselves, there was after all no great crime or harm. That collusion of that kind was quite different to swearing another’s reputation or injuring anyone personally by doing so.
He fully explained to me that collusion was a consent of both parties in divorce law; that an affidavit was, in other words, swearing an oath before a commissioner, and he then promised to see the said Joseph Bishop on my account.
Miss Smith’s affidavit then went on to say that after she returned from Sydney, Mr. Moule informed her that Mr. Bishop wanted 3,600 pounds to go away, but that he (Moule) told him that it was impossible that sum could be paid him; and that Moule told her that Mr. Bishop would probably accept an offer if the suit was ever instituted. He further said that after his having seen Mr. Bishop he (Moule) thought it better she should get a stranger to act as her solicitor, for she knew well Mr. Bishop’s peculiar temper, and that as he (Moule) was acting for her in money matters, and had been solicitor for the firm of Bishop & Keep for many years, and was now friendly with Mr. Bishop, he would prefer not acting, but would give the matter due consideration.
She called upon Mr. Moule in a few days afterwards, when he said he did not think she had a case, and declined to act.
Miss Smith explained that during these communications with Mr. Moule she was not aware that she had the ground for obtaining a divorce upon which the marriage was afterwards declared null. She stated that Mr. Moule lent her a copy of ‘McKean On Divorce’ and that until he got into the witness box, she was not aware that her communications with him were otherwise than as to a professional man.
Dr. Mackay explained that the breach of confidence complained of consisted in this:- Mrs Bishop commissioned Mr. Moule to ask Mr. Bishop if he would consent to a divorce upon the ground of adultery, but he went further and stated in court whom the adultery was alleged to have been committed with.
Mr. Justice Fellows: “When an attorney is commissioned to bring a message to a third person, privilege ceases. It was quite competent for the petitioner to call Mr. Moule to repeat the message which he brought to him.”
Dr. Mackay: “But the attorney was never authorised to state with whom the adultery was committed. It was no part of the message.”
Mr. Justice Fellows: “It was involved in the message. There cannot be adultery without an adulteress. How could Bishop consent to a divorce on the ground of adultery without knowing with whom it was he was said to have committed it?”
Dr. Mackay: “But he does not say he told Mr. Bishop whom the adultery was alleged to have been committed with; and if he did not, he had no right to state it in court. The malice of the attorney is shown by his remark “I could tell you more than you like.”
Mr. Justice Barry observed that that might indicate that the witness was not at liberty to do so.
Mr. Justice Stephen said that the complaint involved a charge of perjury.
Dr. Mackay hoped that there would be no necessity for laying so serious a charge against the attorney.
Mr. Justice Stephen: The complaint amounts to that.
Mr. Justice Barry: No injury has been done to this lady?
Dr. Mackay: There might have been.
Mr. Justice Barry: Then their application is grounded on pure philanthropy and chivalry.
Dr. Mackay submitted that it was necessary for the honour of the profession and in order to maintain confidential relations between client and attorney that such matters as these should be dealt with by the court.
Mr. Justice Barry in giving the decision of the Court said Miss Smith’s affidavit did not state the precise time when Mr. Moule refused to act on her behalf, and therefore there was nothing to show when it was distinctly understood that she wished him to act as her attorney, and when confidential relations would at once begin.
When Moule refused, or declined to act, who could say which variation of the matter as now before the court was true.
The Court was simply asked to call upon the attorney to accuse himself more that he had excused himself. There was nothing in the affidavit of Miss Smith to answer, and the rule nisi was therefore refused.'
Friday, September 4, 1874.
Argus: “An application was made to the Supreme Court yesterday, on behalf of the petitioner in the late divorce suit of Bishop v. Bishop, for a rule requiring Mr. F. G. Moule to answer certain allegations made against him. Mr. Moule had been examined as a witness in the case on behalf of the respondent, and gave evidence of certain conversations that passed between him and the petitioner, in which she asked him to convey certain propositions to the respondent, with which request Mr. Moule complied. Mr. Moule swore that he was not acting as her attorney at that time, but that what he did he did in a friendly way. The applicant, however, swore that at that time she regarded him as her attorney, and she had no other attorney till long after. The Court refused the application, on the grounds that Mr. Moule was not her attorney, and that he only told in Court that which she had authorised him in the first instance to state to the respondent.”
This completed the court dealings of the Bishops for the year 1874, but procedings were still not finished...in August of 1875 we find several more mentions of this case in the pages of the Argus newspaper:
Wednesday 11 August 1875
ARGUS:
Some time ago there was a divorce suit of Bishop v. Bishop, in which Mrs. Bishop sued for a declaration of nullity of marriage, and a decree was made in her favour. Prior to the marriage, Bishop had made a settlement of some property on his intended wife. As the marriage has been declared void, he has since instituted a suit in equity to set aside the settlement. Evidence in the suit was taken yesterday in the Equity Court, when proof was given of the proceedings in the Divorce Court and medical evidence was adduced to show the injury the present defendant’s health had sustained since the marriage The arguments on the legal effect of this evidence will take place next week.
Wednesday 25 August 1875
ARGUS:
A suit was partly heard in the Equity Court yesterday, in which Mr. J. Bishop, who was the respondent in a divorce case of Bishop v. Bishop, sought to have a settlement executed on the occasion of his marriage set aside. Mr. Bishop was married to Miss F. Smith about 11 years ago. Prior to the marriage a settlement was executed upon trustees, who were to hold the property for Bishop till the marriage was solemnised, after the marriage to hold it for his wife. Mrs. Bishop last year instituted proceedings to obtain a declaration of nullity of marriage. In this she was successful, and Mr. Bishop after that decree filed a bill in equity to set aside the marriage settlement, on the ground that the consideration for it, namely, the marriage, did not taken place. The arguments in the suit were partly heard yesterday, and they will be resumed today.
Thursday, August 26, 1875.
ARGUS: "The arguments in the equity suit of Bishop v Smith were concluded in the Supreme Court yesterday, before Mr Justice Molesworth. The suit is instituted by Mr Jospeph Bishop to have a settlement made in 1864, in anticipation of marriage, upon his intended wife, set aside, as having been made without any legal consideration.
The amount of settled property, the subject of the suit, was about five thousand pounds. It was conveyed to a trustee in trust for Mr. Bishop till the marriage was solemnised, and after the solemnisation, in trust for his wife. The marriage ceremony was celebrated in 1864 in St. Peter's Church, but last year the wife obtained from the Court a decree of nullity of marriage. Mr Bishop now claims that as the marriage was void from the beginning there was no consideration for the settlement, and he is therefore entitled to get the property back. Judgment was reserved."
October 5, 1875.
ARGUS: " A divorce suit was heard a few months ago of Bishop and Bishop, in which Mrs Bishop obtained a decree annulling her marriage with Mr Joseph Bishop.
Before the marriage was celebrated, Mr. Bishop had made a settlement on trustees for the benefit of his intended wife, the intended marriago being the consideration for the deed. After the decree of the court, Mr. Bishop filed a bill to set aside the settlement. Mr. Justice Molesworth yesterday gave his decision on the case, holding that there were no reasons for upsetting the settlement, and dismissing the bill, with costs."
Wednesday 22 December 1875
ARGUS: The Supreme Court, in its equity jurisdiction, was engaged yesterday in hearing an appeal from a decision of Mr. Justice Molesworth in the suit of Bishop v. Smith, Plain- tiff sought to have a marriage settlement executed by him in favour of the defendant set aside, but Mr. Justice Molesworth refused to grant the decree sought for by the plaintiff, who appealed to the full Court. After hearing the arguments of counsel, the Court reserved judgment.
Saturday 25 December 1875
ARGUS: In the case of Bishop v, Smith, the Supreme Court gave judgment yesterday, on an application to set aside a marriage settlement executed in favour of the defendant, and I bold that the plaintiff was entitled to the property. The marriage was solemnised some years ago, but was set aside a few months since, at the instance of the defendant. The plaintiff contended that as the marriage had been declared null he was entitled to obtain the property he had settled on the defendant. The Court yesterday decreed that he was not entitled to it, and made a decree accordingly, with costs.
MONDAY, DECEMBER 27, 1875.
ARGUS: "APPELLATE JURISDICTION IN EQUITY
BISHOP V SMITH
This was an appeal from a decision of Mr. Justice Molesworth refusing to set aside a marriage settlement executed by the plaintiff in favour of the defendant.
Mr Justice BARRY read the judgment of the Court as follows -This appeal was argued before Mr Justice Stephen and me during this term, on the20th and 21st of December We are now prepared to deliver the judgment of the court-in which Mr Justice Fellows takes no part-inasmuch as he advised in the case while counsel at the bar. The plaintiff by his bill prays it may be declared that he is absolutely entitled to the whole of the trust funds, investments, and at securities included in an instrument of settlement, bearing date the 24th March, 1864, made and executed by him of the first part, the defendant Fanny Jane Smith, of the second part, and one Jesse Fairchild and the defendant William Smith of the third part, and that the defendant, William Smith, may be ordered to convey and transfer to the plaintiff for his own absolute use the whole of the said trust funds, investments and securities. This settlement was made in consideration of an intended marriage between the plaintiff and the defendant Fanny Jane Smith, and by it ti e plaintiff granted and assigned unto Fairchild and William Smith, as trustees, the property in question. The property was to be held by them in trust for the plaintiff, his executors administrators, and assigns, until the solemnisation of the marriage, and after the solemnisation upon certain trusts for the benefit of Fanny Jane Smith for her separate use during her life, with remainder in trust for the children of the intended marriage; in default of such issue, and subject to the life estate, in trust for the plaintiff, his executors administrators and assigns. The ceremony of marriage was celebrated on the 10th March in the same year, and the plaintiff and defendant Fanny Jane Smith lived together ostensibly as man and wife until she visited England in March, 1867. She returned to cohabitation in 1869, and on the 13th August 1870 a deed of separation was executed, and thereafter hitherto they have lived apart. On 1st July 1873 the defendant Fanny Jane Smith instituted a suit in the Supreme Court, in its divorce and matrimonial jurisdiction against the plaintiff, and in August, 1871 obtained a decree for nullity of marriage, on the ground that the plaintiff was legally incompetent to enter into the contract of marriage for the reason therein set forth. The marriage was therefore declared to be null and void to all intents and purposes whatever. It appears by the pleadings and evidence, and may be stated, that the trustee Fairchild resigned the trust in March, 1872 and assigned his estate and interest to his co trustee, William Smith, who in his answer submits that he is ready and willing to account for and pay over or apply the estate in his hands as he may be directed by the Court; that the plaintiff made an assignment for the benefit of his creditors on August 8, 1866, and that the trustees of that assignment reconveyed to him on December 10,1874. For the plaintiff it was contended that the marriage having thus been declared void ab initio, the defendant (William Smith) held the property on the first trust in the settlement-that is,for him (the plaintiff) until the marriage should be solemnised. For the defendant Fanny Jane Smith), it was argued that there is a distinction between a marriage void and voidable, also in the effect of each, and in the effect of a judgment pronounced in a suit instituted respecting either. It appears to us that this marriage was of the latter kind and that the judgment which declared it void did not disturb the operation of the settlement in her favour, as it was admitted would have been the case had the marriage been declared void ab initio, which was not the case here. It appears to us from the authorities that such a distinction does exist.
A void marriage is a mere nullity-Hemming v Price, 12 Mod 432; it may be assailed in every department of the jurisdiction of the court in a variety of ways, by persons not parties to the so called but wrongly styled marriage. They are allowed to show that it was a nullity at all time during the lifetime of the parties, and after their death. Illustrations of this are afforded in prosecutions for bigamy in which instances the crime was not committed, though there was proof that a second valid marriage was solemnised, the first being absolutely void 1 Hale, P C 693; Reg v St Giles, 11 Q. B 17. 3; R v Young, 5 Cox, 296; R v Brighton, 1 B. and S 449-in cases of ejectment, in which the decisions are numerous; in the case of establishing a will and administering the trusts under the direction of the Court Brook v Brook, 3 Sm; and Gif 481, 9 H of L. 195; and in the case of probate, Haydon v Gould, 1 Salk 119; when it was held that Haydon's demanding a right by the ecclesiastical law must prove himself a husband according to that law, in order to entitle himself to the administration. The effect in the case of a void marriage, is, that the civil disabilities, such as prior marriage, infancy, idiocy, make the marriage ipso facto void ab initio. Avoidable marriage, termed a marriage defacto, is valid for all civil purposes until dissolved The canonical disabilities, including certain corporal infirmities, make it void only after sentence of nullity has been obtained. If not declared null and void by the sentence of a competent court during the life of both husband and wife, it cannot be so declared after the death of either-Rennington v Cole, No 729; consequently the surviving husband may retain chattels of his wife reduced into possession during her coverture. The surviving wife may claim her dower and the other rights of a widow-Co. Lit 33 A. If either were to marry during the lifetime of the other it would be bigamy. In case of probate under 29 Car., 2 C. 3, administration would be granted to either survivor, and this is held not to be an ecclesiastical but a civil right Elliott v Gurr, 2 Phil 16. A marriage voidable on account of congenital malformation in a female can he avoided only by the person injured, that is, the husband , or in such a case as the present, by the wife-Norton v Seton, 3 Phil 147 ; not by the personal representation of either, and the party aggrieved must come promptly, for the maxim curtam diu tacuit applies-the party complaining must be sincere in the ground on which relief is prayed-M v C., L. R .2 P and D. 414; and the defect must be incurable.-A v B ,L.R 1. P and D. 529. These principles being established, the question is narrowed to the simple proposition-have the events found here from the time when the agreement for the settlement was made to the time of instituting this suit, produced the like effect as would have been produced if this had been a marriage void ab initio!? Are the intermediate rights acquired respected, or are they wholly abrogated by the judgment of dissolution? The case of Chapman v Bradley, 33 Beav. 61, reported on appeal, 33 L. J , Chy 139; was much relied upon for the plaintiff, and has been examined in the judgment of the learned primary judge. The marriage there was of a man with his wife's niece, and the first trust in the settlement entered into on the marriage between him and her was the same as in the present case, viz, " for the settler until the solemnisation of the intended marriage. Lord Justice Knight Bruce, in delivering judgment , says-the first question is what is the meaning to be ascribed to the word solemnised? It must mean validity and effectually solemnised. The ceremony of marriage was indeed gone through, but it was as ineffectual as if there never had been any such ceremony. In this the Lord Justice Turner concurred, and said the word "marriage ' must be taken to mean a valid and effectual marriage. Now, here the ceremony was gone through, and a marriage valid and effectual in the first instance to all intents and purposes until dissolved was entered into. To be consistent, the plaintiff should seek, not merely the declaration he invites the Court to make, but a restitution of the funds paid by the trustees under the settlement to the person who was absolutely, as far as third persons were concerned, his lawful wife during the period of her apparent coverture. He is not to be allowed credit for liberality in declining to ask for those receipts, nor to found on his abandonment of them an argument in his favour as to his right to the corpus of the subject of the settlement. In Wilkinson v Gibson, L R, 4 E q. 169; the Vice Chancellor, in delivering judgment, observed:- “By virtue of the contract the husband jure mariti acquires a right to all the property that may fall in or that may be got in by him during the coverture." And at page 167-'From the moment the declaration is made the marriage is destroyed and the vinculum no longer exists ' If this principle be applied equitably, it should operate reciprocally-the husband should get back the property subject to the settlement and all proceeds paid from the date of the marriage to the date of the dissolution, and should give up to the wife any choses in action reduced by him into possession. No such case has been discovered. How, it may be asked, could the parties so affected be placed in statu quo? In Swift v Wenman, L R 10 ,Eq 15; the personal property of the wife was settled on her-a dissolution of the marriage was obtained by reason of the adultery of the husband and his desertion of her. It was held that she was entitled to have the trust fund paid to her. That decision proceeded on the construction of the deed, independent of the doctrine laid down in Dyer 13 a; affirmed in Cage v Acton, 1 Ld Raymond, that it seemed reasonable she should have them, inasmuch as the cause and consideration of the gift was defeated. It may be observed incidentally that it does not appear from either of those reports, nor from the books cited in them, what the facts were, nor for what cause the divorce was granted. We have arrived at the conclusion that such a marriage as occurred between the parties here satisfies the language of the deed of settlement, and that there is so much substance in a voidable marriage that the solemnisation of such a marriage brings into operation the trusts in favour of the wife. We have given much attention to the arguments addressed to us as to the conduct of the plaintiff, and the conclusions drawn therefrom, as to his misrepresentation of his age, his fraud in contracting the marriage while cognisant as he must have been of his disability-his prolonged cohabitation with the lady under circumstances of such degradation, which have entailed on her irreparable injury-the impossibility of reinstating her in her original position-his having joined in the deed of separation admitting the validity of the settlement, interpreting it in a sense wholly different from that on which he now relies-and as to the reasons for which the costs were not given to him in the matrimonial suit, each of which, singly or all combined, disentitle him, as was argued at the bar, to the declaration sought. However, we do not deem it necessary to express an opinion upon any of them, nor to give the result of our examination of the numerous cases cited with respect to them. The judgment of the learned judge is affirmed, and the appeal dismissed with costs to the defendant Fanny Jane Smith.”
And so ends the long and convoluted law dealings of Joseph Bishop and his wife. It is impossible to make judgments from a distance of 136 years...all I can do is present the facts as gathered from newspapers of the period and court documents presented during the case, and allow readers to form an opinion themselves as to who was the "goodie" and who was the "baddie".
Maybe neither Joe nor Fanny played these roles...the court case may have simply been the result of a loveless arranged marrriage that was doomed to fail from the beginning (although I can't help but think that if Joseph's wealth had not diminished, Fanny would have remained content with her role in life as the fashionable young wife of a rich old businessman)
March 30, 1864: marriage of Joseph Bishop, 58, and Fanny Jane Smith, 26. Age difference of 32 years. Both fibbed on their marriage certificate- Joe said he was 46 and Fanny 22.
Joseph Bishop & Co takes over the Soho Foundry in Ballarat.
April to July 1864: Joseph and Fanny travelling in New Zealand. Upon their return to Melbourne, they resided in a house in Caroline Street, South Yarra.
1865: Moved into a house in Lansdown Terrace, St. Kilda.
31 July, 1866: “We understand that the bills of Messrs Joseph Bishop & Co, iron founders, Ballarat, have been returned dishonoured. A meeting of creditors will be called in a few days.”
August 2, 1866: “Messrs Joseph Bishop & Co of Ballarat, whose suspension we noted a few days ago, have called a meeting of their creditors for Friday next. The total liabilities are said not to be in excess of ten thousand pounds.”
August 6, 1866: “A meeting of the creditors of Messrs Joseph Bishop and Co, iron founders, Ballarat, resulted in the assignment of the estate to Messrs Jenner and H. Henty, for the general benefit. The statement submitted to the meeting showed liabilities amounting to 9,141 pounds and assets estimated at 8,020 pounds. The contingent liabilities amount to five thousand pounds.”
September 1866: Advertisements in the Argus newspaper for the sale of Soho Foundry, Ballarat-land, machinery, buildings and equipment.
March, 1867: Fanny Jane Bishop sails for England on board the ‘Holmsdale’. She remains in England with her parents in Devon for two years.
June 27,1868: Dr. William Farrage, Fanny’s doctor, marries her sister, Rebecca Elizabeth Smith, in Melbourne.
November 1869: Fanny Jane Bishop arrives back in Melbourne on board the ‘Agamemnon’.
14 January, 1870: Notice appears in the Argus re. unclaimed dividends in the estate of Joseph Bishop & Co, Ballarat.
January 1870: Fanny Bishop moves back into her husband’s house at Number 3 Nepean Terrace, Gipps Street, East Melbourne.
August 14, 1870: Fanny Jane Bishop again leaves her husband. A deed of separation is drawn up by Joseph’s solicitor Frederick Moule and executed.
July 23, 1873: First document filed by “Fanny Jane Smith falsely called Bishop” filed in her quest to have her marriage with Joseph Bishop declared null. Fanny’s address is “12 Jolimont Road, Melbourne”.
July 28, 1873: Affidavit of Fanny Bishop, with some modifications made from her original (i.e. no reference to the cause of death of Joseph bishop’s first wife)
September 9, 1873: Joseph Bishop answers the statements made by Fanny in her petition.
October 15, 1873: Redmond Barry assigns the doctors to examine both Fanny and Joe...Doctors Lawrence J. Martin and Edwin M. James to “examine the parts and organs of generation of Fanny Jane Bishop the petitioner in this cause and report in writing whether she is or is not a virgin and hath or hath not any impediment on her part to prevent the consummation of marriage”, and Doctors George B. Halford and William Garrard, surgeon, of Melbourne to “examine the parts and organs of generation of Joseph Bishop the respondent in this cause and to report in writing whether he is capable of performing the act of generation and if incapable of so doing whether such his impotency can or cannot be removed by act or skill.”
November 25, 1873:Affidavit from Fanny’s side declaring that “The Petitioner has been advised by counsel that William Farrage formerly of Melbourne, Doctor of Medicine, but now of parts beyond the Colony and out of the jurisdiction of this Honourable Court and who is not expected to return to this colony for upwards of 12 months from the time of swearing this affidavit, is a material witness for the Petitioner in this suit and that she cannot proceed safely to the hearing of it without his evidence.”
November 29, 1873: Sir Redmond Barry agrees for Dr. Farrage and Dr. Charles Howell Collins of Chew Magna, Somerset, to be interviewed in England and orders their finding be sent back to Melbourne for the trial.
Wednesday, April 29, 1874: “The following is a list of cases set down for trial during the divorce and equity appeal sittings commencing on the 1st May - Divorce Sutton v Sutton Russell v Russell, Bishop v Bishop.” –Argus.
May 2, 1874: “ Supreme Court- Old Court House. Friday May 1.
Divorce and Matrimonial Causes and Appellate Jurisdiction.( Before their Honours Mr. Justice Barry and Mr Justice Fellows).
Bishop V Bishop: Mr. Ireland, Q.C, (with Mr. Lawes) applied for an order that this case should be tried before a jury. The petitioner sued for a decree of nullity of marriage. The application was opposed by Mr. Webb on behalf of the respondent, and it was eventually adjourned until 10 o’clock on Monday next.” –Argus.
Monday, May 4, 1874: “ Law Notices This Day. Supreme Court. (Before their Honours Mr Justice Barry, Mr Justice Fellows and Mr Justice Stephen).
Bishop V Bishop (application for a trial by jury).
Monday, March 18, 1874: “Law Notices This Day. Supreme Court. New Court House. (Before His Honour Mr Justice Barry and a Special Jury of twelve.) Divorce and Matrimonial Causes Jurisdiction- Bishop V Bishop.” -Argus
"In the Divorce Court today the case of Bishop v Bishop, in which the wife prays for a dissolution of marriage, on the ground of her husband's incompetency, was partly heard.The petitioner wished the case to be heard in private, but the husband objecting this could not be done. Her position in the witness box was a most painful and distressing one.We are compelled to withhold our report, as His Honor Mr Justice Barry directed that no reports should be published until the case was concluded."
Tuesday, May 19, 1874:
"The hearing of this case was resumed at about 2 p.m today when Mrs Bishop continued her direct evidence.We are requested to state that yesterday Mr. Ireland, Q.C., acknowledged he was in error when he said that an application to have the case tried in Chambers was resisted by the respondent.We may also state that it is not our intention to publish the evidence,even when the case is concluded."
"The hearing of evidence in the suit of Bishop v Bishop in the Divorce Court was continued today before His Honor Mr Justice Barry and a jury, but the court had to be adjourned for some time, in order to allow His Honor to be present in the Legislative Council chamber to open Parliament.As there appears to be some doubt as to why the evidence in this case is not published, we may as well state the that the petition is for the marriage to be declared void, on the ground of permanent impotency on the part of the husband.The evidence is, of course, to a very great extent, totally unfit for publication, but subsequent to the case being opened it was agreed between the parties to have a private hearing only.The court was therefore cleared, and in pursuance of the custom in vogue in reference to the proceedings of the Divorce Courts in London the Press has, in deference to the wish of the preceding Judge,abstained from publishing the evidence.It is not likely that the case will be concluded for some days, but of course the result will be made known."
Argus: “ Mr Justice Barry and a Special Jury of 12 were engaged yesterday in trying a divorce suit of Bishop V Bishop, in which the petitioner sues for a declaration of nullity of marriage. The parties were married some 14 years ago, the petitioner then being 20 years of age and the respondent 44. For some years past they have lived separate. Mr Ireland, Q.C., and Mr Lawes are for the petitioner, and Mr Higinbotham and Mr Webb for the respondent. The court was cleared for the hearing of the case. The evidence will not be concluded for the next two or three days.”
Wednesday May 20, 1874.
Argus: “ The divorce suit of Bishop V Bishop was continued in the Supreme Court yesterday, before Mr Justice Barry and a special jury of twelve. The respondent while giving her evidence got into a state of hysterics, and it was some time before her examination was resumed. The case will probably last during the remainder of the week.”
Port Phillip Herald: "BISHOP v BISHOP. The hearing of this divorce case was continued today before Mr Justice Barry and a special jury of twelve.Although the proceedings are conducted in the new Supreme Court House, they are virtually carried on in Chambers,the building, for the present, being converted into Justice Barry's private apartment. A policeman is stationed on each door to prevent any persons from entering, except those who have actual business in the case, or barristers.
The approaches to the side door are blocked up day after day with persons anxious to obtain a glimpse of the petitioner through the window in the door. Mrs Bishop occupies a chair on the floor of the court, between the jury and the Judge, and Mr Bishop sits at the lawyer's table, opposite his counsel.
The petitioner is a nice-looking, lady-like and well-educated person, who states she is twenty nine years of age. The respondent gives his age as 53. Few women, it may be said, have found themselves in a more painful and trying position. The petitioner in this case, and the community, may be congratulated on the proceedings in the matter being carried on with closed doors, and the whole of the evidence being withheld by the public press.
Last evening his Honor sat after dark, and candles had to be procured, which only served to make the darkness visible.And, by the way, can anyone explain why gaslight seems to be invariably eschewed in English Courts of Law? Westminster Hall is without gas,and so are the Four Courts at Dublin.
During her examination, Mrs Bishop frequently exhibits dispositions to hysteria.The lady, however, was treated with great indulgence, and under the circumstances, with courtesy by counsel on both sides.The witnesses examined today were Doctors Ford, Bird and Barnett, who gave evidence for the petitioner."
THURSDAY,MAY 21, 1874.
Argus: “ The divorce suit of Bishop v Bishop was proceeded with yesterday in the Supreme Court before Mr Justice Barry and a special jury of twelve. The evidence for the petitioner was closed and the examination of the respondent was commenced but was not concluded when the court adjourned till next day.”
PORT PHILLIP HERALD: " The divorce case, Bishop v Bishop, was continued today, in private, before Mr Justice Barry and a jury.The whole of the day, up to the time of our going to press, was occupied with the continuation of the examination of Mr. Bishop, the respondent, by Mr Higinbotham and his cross examination by Mr Ireland Q.C. The respondent was still in the box when our reported left. It is likely that the case will extend over the whole of tomorrow."
Friday May 22, 1874
ARGUS: “The divorce suit of Bishop v. Bishop was continued yesterday in the Supreme Court. Evidence was given on behalf of the respondent. A number of medical witnesses will be examined to-day, and the case will probably be concluded in the course of the afternoon.”
PORT PHILLIP HERALD: "BISHOP V BISHOP: The hearing of this divorce case was continued today in the new Supreme Court House before his Honor Mr Justice Barry and a Special Jury of Twelve.The doors of the court were, as on the previous days, closed and kept by policemen.The witnesses examined today were Professor Halford,Mr Garrard, Surgeon, Dr Martin, Collins Street,and Dr. Gunnt,who gave evidence for the respondent. It was stated that some further evidence could be adduced on behalf of the petitioner.It is possible that the case will be concluded this evening, but the probability is that it will run into tomorrow."
Saturday, May 23, 1874.
Argus: “The hearing of the divorce suit of Bishop v. Bishop was continued in the Supreme Court yesterday, before Mr. Justice Barry, and a special jury of 12. The evidence for the respondent was concluded, and as it was impossible to finish the case yesterday, one of the jurors asked that it should be adjourned over Saturday, as he (being a Jew) had conscientious scruples against transacting business on Saturday. The case was accordingly adjourned till Wednesday next.”
Mercury, Hobart: May 23, 1874
Suit of Bishop v. Bishop was commenced on Monday, in the Supreme Court, sitting in its matrimonial causes jurisdiction, before Mr. Justice Barry and a special jury of twelve. The wife is the petitioner, and, seeks to be divorced from her husband, who was lately a partner in a leading mercantile firm in Melbourne. It is one of the most painful cases ever brought into court, and invites many medical questions. Mrs. Bishop was in the box the whole of the day, and made some extraordinary revelations. His Honor the presiding judge made a request that the Press, so far, should not publish the particulars. On Tuesday, Mr. Ireland, who appeared with Mr. Lawes for the petitioner, having on the previous day concluded his examination-in-chief of Mrs. Bishop, Mr. Higinbotham yesterday commenced to cross examine her on the painful testimony she gave on Monday. Mrs. Bishop was much affected and embarrassed by the ordeal she had to undergo, and on the occasion, shortly after the commencement of the cross -examination, she was seized with a fit of hysterics, became insensible, and had to be carried into one of the inner rooms of the court. Dr. Garrard, who was present, attended to her, and in about ten minutes she was sufficiently recovered to be able to return to the court, where she and a lady friend who accompanied her were accommodated with seats. Afterwards her statements as to facts in answer to Mr. Higinbotham were very clear, considering the circumstances under which she was placed. The learned counsel, in his cross-examination, displayed the utmost possible delicacy which his unpleasant duty allowed. It is not likely that the case will be concluded today. As on Monday, the general public were not admitted.”
Wednesday, May 27, 1874.
Port Phillip Herald: " BISHOP V BISHOP:The hearing of this divorce case was continued today in private before his Honor Mr Justice Barry and a special jury of twelve. Messrs Ireland, Q.C, and Lawes appeared for the petitioner (Mrs Bishop) and Messrs Higinbotham and Webb for the respondent.At the insistence of a juror,Mr Garrard,surgeon, one of the witnesses for the respondent, was recalled and gave some further testimony.Mr. Higinbotham then addressed the jury on behalf of the respondent."
Thursday May 28, 1874.
ARGUS: "The hearing of the divorce suit of Bishop v Bishop was resumed yesterday in the Supreme Court before Mr Justice Barry and a special jury of twelve. Mr Higinbotham addressed the jury for the respondent and Mr Ireland replied for the petitioner. At the close of the address of the latter the further hearing was postponed till next day. The following order has been published in connexion with the case – “The parties having agreed that this cause should be heard in camera, I do order that no portion of the evidence or proceedings be published. Dated the 18th May I874. Redmond Barry.”
PORT PHILLIP HERALD: "BISHOP V BISHOP: The hearing of this case was continued today before Mr. Justice Barry and a jury of twelve.His Honor was engaged up to twenty five minutes before two o'clock in charging the jury.At the hour mentioned, the jury retired to consider their verdict."
Friday, May 29, 1874.
Argus: “The divorce suit of Bishop v Bishop was brought to a close yesterday in the Supreme Court. The petition was filed by Mrs Bishop praying for a declaration of nullity of marriage. The petitioner came to this colony from England in 1860. In 1864 she married the respondent, his age being then 59 and hers as "she said 20 but, as another witness said, 26. There was a sum settled on her producing from £150 to £200 per annum. In 1867 she went to England, returned to this country in 1869; lived with the respondent for a few months then separated from him and after a time instituted this suit. The case was tried before a special jury of 12. Mr Justice Barry summed up yesterday. The jury returned about 2 o clock. There was some doubt in the first instance as to whether a verdict of three fourths of the jury could be taken but the difficulty was overcome by each party consenting to accept such a verdict. At 6 o clock the jury returned into Court and the foreman announced that 11 of them had agreed to a verdict for the Petitioner. The verdict was therefore recorded in favour of the petitioner.”
MAY 30, 1874:
MAITLAND MERCURY: "News From Melbourne.The case of Bishop v Bishop, in the divorce court, still continues with closed doors. A report of the proceedings will be privately published.500 subscribers have guaranteed to purchase half-a crown copies.
(Evening news)His Honor Sir Redmond Barry, in anticipation of the publication of the proceedings in the divorce suit Bishop v Bishop, has issued an order to prevent that contingency.It remains to be seen whether such an order applies to publication after trial."
JUNE 10, 1874.
PORT PHILLIP HERALD. "Bishop V Bishop. A Professional Disagreement.
The recent divorce suit of Bishop v Bishop is now engaging the attention of the Law Institute.Mr. Clayton, solicitor for the respondent,(NOTE:Mr Clayton was actually solicitor for Fanny Bishop, the petitioner) has forwarded the following documents to the President of the Institute, and the accusations were considered by the Council of the Institute yesterday afternoon:-
(COPY) 28 Great Collins Street West,Melbourne, 2 June, 1874.
To the President of the Law Institute of Victoria,
SIR- I beg to bring under the notice of the Council of the Law Institute a charge of unprofessional and ungentlemanly conduct against a member of the profession- Mr. F.G Moule.
The facts are shortly as follows:-Mr Moule had for some years acted professionally for Mrs Bishop( the petitioner in the divorce suit of Bishop v Bishop), having prepared her marriage settlement and subsequently a deed of separation between her and her husband.
Shortly before the commencement of the suit, Mrs Bishop consulted him as to the different grounds on which a divorce could be applied for, and particularly as to whether it could be obtained by the consent of the parties. Mr Moule informed her that she would have to swear there was no collusion in the matter, and eventually, at her request, made a proposal to Mr Bishop to the effect that if his wife commenced proceedings and he did not defend them, she would make him a pecuniary allowance.
This proposal fell through, and Mr Moule declined to act further in the matter.
Mrs Bishop then commenced her suit, and on the trial Mr Moule was subpoenaed by the respondent to produce the settlement deed, and then voluntarily gave evidence divulging the proposal and conversations between himself and Mrs Bishop above alluded to.
You will observe from the copy of the evidence sent herewith that Mr Moule excused himself by stating that he advised Mrs Bishop in the matter as a friend.I venture to suggest for your consideration whether in that case his conduct is not more dishonorable and unjustifiable than if he had advised her professionally.
At the close of Mr Moule's evidence under cross examination by Mr Ireland, he said "I might tell you more than you like about your client", for which statement he subsequently had to apologise to the court before leaving the box.
I deem it right to bring the foregoing facts under your notice, especially as I observe, on reference to the rules of the Institute, that Sec. 3 states,amongst other things, that the objects of the Institute are "to preserve and maintain the integrity of the profession" and "to suppress any illegal and dishonorable practice".
I enclose a copy of Mr. Moule's evidence,as taken down by Mr Lawes,also copies of two letters written by Mr Moule to Mrs Bishop, showing, I think, clearly that the relationship of attorney and client existed between them.
I have the honor to remain, Sir, your obedient servant.
______________________________________________________________________
Market Street, Melbourne,
26th July, 1870.
Dear Madam,
I have had the deed prepared, but should like to read over and explain the draft to you before it is copied for signature. have you seen Dr. Farrage to know if he will act as your trustee? Yours truly,
Frederick G. Moule.
Mrs Bishop, 3 Napier Terrace,Gipps Street.
______________________________________________________________________
Market Street, Melbourne. 26th August, 1870.
Dear Madam,
I send your part of deed of seperation as requested.The charges against you amount to ten pounds ten shillings.I am, Yours truly, Frederick G. Moule.
Mrs Bishop, 156 Collins Street East.
__________________________________________________________________
Smith (Falsely called Bishop) v Bishop.
Frederick George Moule examined by Mr. Higinbotham. Mr Smith is the brother of Mrs Bishop, and he is the trustee, and I am agent for him. I know petitioner and respondent. I remember petitioner and respondent coming to my office with Mr Fairchild as to a deed of seperation (objection to conversation about period of seperation). I do not remember whether I ever acted acted for Mrs Bishop since seperation. Jesse fairchild resigned and Mr William Smith has been substituted. I have given legal advice as a friend to Mrs Bishop. I did not refuse to act for her until she had disclosed what she wished me to do. She did not consult me on professional matters.She asked me to act for her as to divorce. I refused to act for either party. Mrs Bishop used to come on friendly terms to me about rents.. I bore a message from her to the respondent. This was after the seperation, after I had told her I would not act for her or Mr Bishop. The message was "If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year, or make some division of the capital."
I said that couldn't be done, unless you perjure yourself; you have to swear in your affidavit that there was no collusion between yourself and him. The adultery was stated to be with some maid servant in the house. I cannot remember the nature of the cruelty. She meant the seperation as the desertion. I told her I didn't think the seperation was a ground.She said she would consult her solicitor. The converstation was some months before she went to Sydney. That was all that took place. She came afterwards and said she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.After she returned, she asked me to make another proposal to Mr Bishop on other grounds, which I don't feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.
Cross-examined by Mr Ireland: I told Mr Bishop all this as I was told by Mrs Bishop to tell him.She borrowed "McKean on Divorce" from me. I believe I opened McKean. I think I told her that adultery was not sufficient without cruelty. Within the last few days I told Mrs Bishop I was going to be a witness.I did not say to her what I was going to say.I had no subpoena but that duoes tuum. I might tell you more that you like.I do not think it right to have said what I just did."
Saturday, June 13, 1874.
Argus: “We understand that Mr Clayton, solicitor for the petitioner in the late divorce suit of Bishop v Bishop, being dissatisfied with the decision of the council of the Law Institute with reference to the charge of unprofessional conduct made by him against Mr Moule, solicitor, has determined to bring the matter before the Supreme Court for the opinion of the judges and has retained counsel in support of the application.”
Saturday, July 4, 1874.
Argus: “The divorce suit of Bishop v. Bishop, which attracted so much attention a few weeks ago, has been set down for a final hearing on the 28th inst., when the petitioner will apply for a declaration of nullity of marriage.”
Tuesday July 28, 1874.
PORT PHILLIP HERALD: "BISHOP v BISHOP. PROCEEDINGS UNDER THE DIVORCE AND MATRIMONIAL JURISDICTION. MONTION TO ENTER UP JUDGEMENT FOR NULLITY OF MARRIAGE. QUESTION OF COSTS.JUDGMENT RESERVED.
His Honor Mr Justice Barry sat this morning in the new Supreme Courthouse in Divorce and Matrimonial Causes Jurisdiction, for the purpose of concluding the case of Bishop v Bishop. Mrs Bishop, nee Smith, sought to have her marriage with the respondent(late a wholesale ironmonger,carrying on business in Elizabeth Street, Melbourne) declared null. Certain questions of fact were not long since decided by a jury in favour of the petitioner.
Messrs Ireland, Q.C, and Lawes appeared for the petitioner, and Mr. Webb for the respondent.
Mr. Lawes formally moved that judgment for the nullity of the marriage should be entered up.
Mr. Webb, after the decision of the jury, did not object to judgment being recorded, but wished to mention the question of costs.He said that Mr. Bishop was possessed of nothing but the fifty pounds a year which his wife allowed him from the settlement that he had made upon her.If the respondent were ordered to pay the costs, he would probably be obliged to go into the Insolvent Court.
Mr. Lawes said it was not desired to deal harshly with the respondent, but it should be understood that if the costs were to be paid by the petitioner,Mr Bishop would have to give up all claim to the settlement which Mrs Bishop at the hearing before the jury intimated her willingness to relinquish.Mrs Bishop had no means of paying the costs except from the settlement.
Mr Webb suggested that whoever secured the settlement should pay the costs. Counsel added that if Mrs Bishop consented to give up the settlement, Mr Bishop would guarantee to pay the costs.
His Honor reserved his judgment on the question of the nullity of the marriage and of costs until Saturday morning next."
Wednesday, July 29, 1874.
ARGUS: “(Before his Honour Mr. Justice Barry.)
Bishop v. Bishop.
This suit came before the Court for a decree by the petitioner declaring her marriage with the respondent a nullity.
Mr. Ireland, Q.C., and Mr. Lawes were for the petitioner, Mr. Webb for the respondent.
The case has been tried before a jury, who decided in favour of the petitioner; and the respondent's counsel said that he could not oppose the decree being made, but he submitted that the respondent ought not to pay the costs. On the other hand, it was pointed out that at the time of the marriage some property was settled on the petitioner which at the trial she had offered to give up. If she had to pay the cost of the litigation she ought to be allowed to keep the settled property. Mr. WEBB said that if the property was given up to Mr. Bishop, he would pay the costs.
His Honour reserved his decision, and the Court adjourned till Saturday.”
Wednesday 29 July 1874.
Argus: “The divorce suit of Bishop V Bishop was brought before His Honour Mr Justice Barry yesterday morning. An application was made on behalf of the petitioner for a final decree, declaring the marriage void. The application was not opposed by the respondent, as after the verdict of the Jury, which it was not sought to set aside, there was no other course open but to grant the decree. The question was raised, however, as to who was to pay the costs, as the respondent had no property. At the time of the marriage some property was settled on the petitioner which, at the trial, she said she was willing to give up. A proposition was made that if she paid the costs she could keep the property. His Honour reserved his decision.”
July 30, 1874: Affidavit by Samuel Crisp, in response to a request by Sir Redmond Barry for the financial details of the marriage settlement between Joe and Fanny, states that Joe is at present absent from the Colony and he cannot communicate with him in time to obtain said affidavit.
August 1, 1874.
PORT PHILLIP HERALD: " The divorce case of Bishop v Bishop was brought to a close this morning in the Supreme Court before his Honor Mr Justice Barry, when a decree was formally entered up for a nullity of marriage, as prayed for by Miss Smith, falsely called Mrs Bishop. The parties were ordered to pay their own costs."
Monday, August 3, 1874.
Argus: LAW REPORT.
SUPREME COURT.
Marriage and Matrimonial Causes Jurisdiction.
New Court House,-Saturday August 1.
(Before his Honour Mr. Justice Barry.)
Bishop V Bishop.
This suit came before the Court for a final decree of nullity of marriage.
Mr Ireland who appeared for the petitioner said that the offer he had made, if the decree was assented to, to abandon the settlement made on the respondent was meant seriously though its seriousness had been questioned. As the respondent had declined the offer he contended that respondent had now no right to take advantage of it.
His Honour said that at the time the offer was made he was under the belief it was not meant seriously. As to the case he would make a decree for the nullity of the marriage . In regard to the costs he had examined several cases which showed that the Court had a discretion as to giving costs. The Court took into consideration the husband’s position and whether there were funds available for the costs. In this instance the respondent had no means except what he derived by agreement from his wife’s settlement. There was some discrepancy in the affidavits as to the amount of the settled property, the petitioner stating it at £4 O66 and the respondent at £4 625. The petitioner derived £249 a year from the settlement, out of which she allowed the respondent the pittance of £50 a year. He should order each party to pay their own costs.
Decree for nullity, without costs. The Court adjourned sine die.”
Argus: “Mr Justice Barry on Saturday gave his decision in the divorce suit of Bishop v. Bishop. He granted a decree declaring the Marriage a nullity, but gave no costs, as the husband was without means.”
THursday Evening, September 3, 1874.
PORT PHILLIP HERALD:
BISHOP V BISHOP
-COMPLAINT AGAINST MR. MOULE, SOLICITOR-
In the Supreme Court today, before their Honors Mr. Justice Barry, Acting Chief Justice; Mr. Justice Fellows, and Mr. Justice Stephens, Dr. Mackay moved for a rule nisi calling upon Mr. F.G Moule, solicitor, to answer the matter in an affidavit filed by Miss Fanny Jane Smith (late Mrs. Bishop) charging him with having improperly divulged matter communicated by her to him in a privileged manner as her attorney.
It will be remembered that Mrs Bishop recently obtained a divorce from her husband, Joseph Bishop, late of the firm Bishop & Keep, wholesale ironmongers of this city. Certain questions of fact were decided by a jury, and at the trial Mr. Moule (who did not act for either parties in the suit) was called as a witness for the respondent, when he detailed a message which he stated he received from Mrs Bishop to communicate to her husband.
Today Dr. Mackay read the following sworn note of evidence given by Mr. Moule at the trial, as taken by one of the Counsel in court at the time.
“ W. Smith is the brother of Mrs. Bishop, and he is the trustee under the settlement made by Mr Bishop on his wife. I am an agent for Mr Smith.
I knew petitioner and respondent. I remember petitioner and respondent coming to my office with Mr. Fairchild as to a deed of separation. I do not remember whether I ever acted for Mrs. Bishop since her separation.
Jesse Fairchild resigned, and Mr W. Smith had been substituted.
I have given legal advice as a friend to Mrs. Bishop. I did not refuse to act for her until she had disclosed to me what she wanted me to do. She did not consult me on professional matters. She asked me to act for her as to divorce. I refused to act for either party.
Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the separation- after I had told her I would not act for her or Mr Bishop.
The message was “If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year or make some division of the capital.”
I said “That could not be done, unless you perjure yourself. You have to swear in your affidavit that there was no collusion between yourself and him.”
The adultery was stated to be with some servant maid to the house. I cannot remember the nature of the cruelty. She meant the separation as desertion.
I told her I did not think the separation was a ground. She said she would consult her solicitor. This conversation was some months before she went to Sydney. That was all that ___ ___.
She came afterwards and said that she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.
After she returned she asked me to make another proposal to Mr. Bishop on other grounds, which I do not feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.”
Cross-examined by Mr Ireland, Q.C:
“I told Mr Bishop all this, as I was told by Mrs Bishop to tell him. She borrowed “McKean’ from me. I believe she opened ‘McKean’. I think I told her that adultery was not sufficient without cruelty.
Within the last few days I told Mrs Bishop I was going to be a witness. I did not say to her what I was going to say. I had no ____ but that ___ __. I might tell you more than you like. I do not think it right to have said what I just did.”
Miss Smith’s affidavit commenced by stating that Mr Moule, as agent for the trustees under the deed of settlement, received rents from property investment and paid them over at intervals to ___ ____ in August 1870, he prepared a deed of separation from her ex-husband, for which she paid him ten pounds ten shillings.
She then went to deal with the present subject of the complaint:
“In or about the month of January 1871, I called upon the said Frederick George Moule and asked him- firstly, whether he still acted as agent for the said Joseph Bishop, to which he replied “No”. Since the deed of separation had been signed by the said Joseph Bishop and myself we have passed each other in the street.
I then requested the said Frederick George Moule to inform me what were the general laws relating to divorce. He took up a law book and read from it certain passages, telling me cruelty and adultery were combined and asked “What charges do you consider you have against him?” (meaning Joseph Bishop).
I replied “Only the ___ ____ of a servant giving me notice to leave bedroom(???) the said Joseph Bishop went into her room but I thought nothing of it.
I also said that on the day of the deed being signed, the said Joseph Bishop told me he would take a cottage in the country and ___ the ________ knew.
As regards cruelty, I told him that Dr. Farrage considered my life was in danger by living with the said Joseph Bishop, and that his general unkindness depressed me very much; that the said Joseph Bishop had struck me, but not in the presence of a witness.
The said F.G Moule told me that in some cases words had been allowed to be considered cruelty combined with other charges, and he then said he thought I had not sufficient case.
I asked him if he thought it would be possible to have the case tried privately so as to save publicity. He replied “Only by bribing Mr. Bishop not to appear, and that in that case the Crown would defend it.”
He said I should not have an interview with the said Mr. Bishop, for that would be collusion, but that if it were done through a third person, and I could allow my conscience to make an affidavit to the effect that there was no collusion, and considering that it would only concern ourselves, there was after all no great crime or harm. That collusion of that kind was quite different to swearing another’s reputation or injuring anyone personally by doing so.
He fully explained to me that collusion was a consent of both parties in divorce law; that an affidavit was, in other words, swearing an oath before a commissioner, and he then promised to see the said Joseph Bishop on my account.
Miss Smith’s affidavit then went on to say that after she returned from Sydney, Mr. Moule informed her that Mr. Bishop wanted 3,600 pounds to go away, but that he (Moule) told him that it was impossible that sum could be paid him; and that Moule told her that Mr. Bishop would probably accept an offer if the suit was ever instituted. He further said that after his having seen Mr. Bishop he (Moule) thought it better she should get a stranger to act as her solicitor, for she knew well Mr. Bishop’s peculiar temper, and that as he (Moule) was acting for her in money matters, and had been solicitor for the firm of Bishop & Keep for many years, and was now friendly with Mr. Bishop, he would prefer not acting, but would give the matter due consideration.
She called upon Mr. Moule in a few days afterwards, when he said he did not think she had a case, and declined to act.
Miss Smith explained that during these communications with Mr. Moule she was not aware that she had the ground for obtaining a divorce upon which the marriage was afterwards declared null. She stated that Mr. Moule lent her a copy of ‘McKean On Divorce’ and that until he got into the witness box, she was not aware that her communications with him were otherwise than as to a professional man.
Dr. Mackay explained that the breach of confidence complained of consisted in this:- Mrs Bishop commissioned Mr. Moule to ask Mr. Bishop if he would consent to a divorce upon the ground of adultery, but he went further and stated in court whom the adultery was alleged to have been committed with.
Mr. Justice Fellows: “When an attorney is commissioned to bring a message to a third person, privilege ceases. It was quite competent for the petitioner to call Mr. Moule to repeat the message which he brought to him.”
Dr. Mackay: “But the attorney was never authorised to state with whom the adultery was committed. It was no part of the message.”
Mr. Justice Fellows: “It was involved in the message. There cannot be adultery without an adulteress. How could Bishop consent to a divorce on the ground of adultery without knowing with whom it was he was said to have committed it?”
Dr. Mackay: “But he does not say he told Mr. Bishop whom the adultery was alleged to have been committed with; and if he did not, he had no right to state it in court. The malice of the attorney is shown by his remark “I could tell you more than you like.”
Mr. Justice Barry observed that that might indicate that the witness was not at liberty to do so.
Mr. Justice Stephen said that the complaint involved a charge of perjury.
Dr. Mackay hoped that there would be no necessity for laying so serious a charge against the attorney.
Mr. Justice Stephen: The complaint amounts to that.
Mr. Justice Barry: No injury has been done to this lady?
Dr. Mackay: There might have been.
Mr. Justice Barry: Then their application is grounded on pure philanthropy and chivalry.
Dr. Mackay submitted that it was necessary for the honour of the profession and in order to maintain confidential relations between client and attorney that such matters as these should be dealt with by the court.
Mr. Justice Barry in giving the decision of the Court said Miss Smith’s affidavit did not state the precise time when Mr. Moule refused to act on her behalf, and therefore there was nothing to show when it was distinctly understood that she wished him to act as her attorney, and when confidential relations would at once begin.
When Moule refused, or declined to act, who could say which variation of the matter as now before the court was true.
The Court was simply asked to call upon the attorney to accuse himself more that he had excused himself. There was nothing in the affidavit of Miss Smith to answer, and the rule nisi was therefore refused.'
Friday, September 4, 1874.
Argus: “An application was made to the Supreme Court yesterday, on behalf of the petitioner in the late divorce suit of Bishop v. Bishop, for a rule requiring Mr. F. G. Moule to answer certain allegations made against him. Mr. Moule had been examined as a witness in the case on behalf of the respondent, and gave evidence of certain conversations that passed between him and the petitioner, in which she asked him to convey certain propositions to the respondent, with which request Mr. Moule complied. Mr. Moule swore that he was not acting as her attorney at that time, but that what he did he did in a friendly way. The applicant, however, swore that at that time she regarded him as her attorney, and she had no other attorney till long after. The Court refused the application, on the grounds that Mr. Moule was not her attorney, and that he only told in Court that which she had authorised him in the first instance to state to the respondent.”
This completed the court dealings of the Bishops for the year 1874, but procedings were still not finished...in August of 1875 we find several more mentions of this case in the pages of the Argus newspaper:
Wednesday 11 August 1875
ARGUS:
Some time ago there was a divorce suit of Bishop v. Bishop, in which Mrs. Bishop sued for a declaration of nullity of marriage, and a decree was made in her favour. Prior to the marriage, Bishop had made a settlement of some property on his intended wife. As the marriage has been declared void, he has since instituted a suit in equity to set aside the settlement. Evidence in the suit was taken yesterday in the Equity Court, when proof was given of the proceedings in the Divorce Court and medical evidence was adduced to show the injury the present defendant’s health had sustained since the marriage The arguments on the legal effect of this evidence will take place next week.
Wednesday 25 August 1875
ARGUS:
A suit was partly heard in the Equity Court yesterday, in which Mr. J. Bishop, who was the respondent in a divorce case of Bishop v. Bishop, sought to have a settlement executed on the occasion of his marriage set aside. Mr. Bishop was married to Miss F. Smith about 11 years ago. Prior to the marriage a settlement was executed upon trustees, who were to hold the property for Bishop till the marriage was solemnised, after the marriage to hold it for his wife. Mrs. Bishop last year instituted proceedings to obtain a declaration of nullity of marriage. In this she was successful, and Mr. Bishop after that decree filed a bill in equity to set aside the marriage settlement, on the ground that the consideration for it, namely, the marriage, did not taken place. The arguments in the suit were partly heard yesterday, and they will be resumed today.
Thursday, August 26, 1875.
ARGUS: "The arguments in the equity suit of Bishop v Smith were concluded in the Supreme Court yesterday, before Mr Justice Molesworth. The suit is instituted by Mr Jospeph Bishop to have a settlement made in 1864, in anticipation of marriage, upon his intended wife, set aside, as having been made without any legal consideration.
The amount of settled property, the subject of the suit, was about five thousand pounds. It was conveyed to a trustee in trust for Mr. Bishop till the marriage was solemnised, and after the solemnisation, in trust for his wife. The marriage ceremony was celebrated in 1864 in St. Peter's Church, but last year the wife obtained from the Court a decree of nullity of marriage. Mr Bishop now claims that as the marriage was void from the beginning there was no consideration for the settlement, and he is therefore entitled to get the property back. Judgment was reserved."
October 5, 1875.
ARGUS: " A divorce suit was heard a few months ago of Bishop and Bishop, in which Mrs Bishop obtained a decree annulling her marriage with Mr Joseph Bishop.
Before the marriage was celebrated, Mr. Bishop had made a settlement on trustees for the benefit of his intended wife, the intended marriago being the consideration for the deed. After the decree of the court, Mr. Bishop filed a bill to set aside the settlement. Mr. Justice Molesworth yesterday gave his decision on the case, holding that there were no reasons for upsetting the settlement, and dismissing the bill, with costs."
Wednesday 22 December 1875
ARGUS: The Supreme Court, in its equity jurisdiction, was engaged yesterday in hearing an appeal from a decision of Mr. Justice Molesworth in the suit of Bishop v. Smith, Plain- tiff sought to have a marriage settlement executed by him in favour of the defendant set aside, but Mr. Justice Molesworth refused to grant the decree sought for by the plaintiff, who appealed to the full Court. After hearing the arguments of counsel, the Court reserved judgment.
Saturday 25 December 1875
ARGUS: In the case of Bishop v, Smith, the Supreme Court gave judgment yesterday, on an application to set aside a marriage settlement executed in favour of the defendant, and I bold that the plaintiff was entitled to the property. The marriage was solemnised some years ago, but was set aside a few months since, at the instance of the defendant. The plaintiff contended that as the marriage had been declared null he was entitled to obtain the property he had settled on the defendant. The Court yesterday decreed that he was not entitled to it, and made a decree accordingly, with costs.
MONDAY, DECEMBER 27, 1875.
ARGUS: "APPELLATE JURISDICTION IN EQUITY
BISHOP V SMITH
This was an appeal from a decision of Mr. Justice Molesworth refusing to set aside a marriage settlement executed by the plaintiff in favour of the defendant.
Mr Justice BARRY read the judgment of the Court as follows -This appeal was argued before Mr Justice Stephen and me during this term, on the20th and 21st of December We are now prepared to deliver the judgment of the court-in which Mr Justice Fellows takes no part-inasmuch as he advised in the case while counsel at the bar. The plaintiff by his bill prays it may be declared that he is absolutely entitled to the whole of the trust funds, investments, and at securities included in an instrument of settlement, bearing date the 24th March, 1864, made and executed by him of the first part, the defendant Fanny Jane Smith, of the second part, and one Jesse Fairchild and the defendant William Smith of the third part, and that the defendant, William Smith, may be ordered to convey and transfer to the plaintiff for his own absolute use the whole of the said trust funds, investments and securities. This settlement was made in consideration of an intended marriage between the plaintiff and the defendant Fanny Jane Smith, and by it ti e plaintiff granted and assigned unto Fairchild and William Smith, as trustees, the property in question. The property was to be held by them in trust for the plaintiff, his executors administrators, and assigns, until the solemnisation of the marriage, and after the solemnisation upon certain trusts for the benefit of Fanny Jane Smith for her separate use during her life, with remainder in trust for the children of the intended marriage; in default of such issue, and subject to the life estate, in trust for the plaintiff, his executors administrators and assigns. The ceremony of marriage was celebrated on the 10th March in the same year, and the plaintiff and defendant Fanny Jane Smith lived together ostensibly as man and wife until she visited England in March, 1867. She returned to cohabitation in 1869, and on the 13th August 1870 a deed of separation was executed, and thereafter hitherto they have lived apart. On 1st July 1873 the defendant Fanny Jane Smith instituted a suit in the Supreme Court, in its divorce and matrimonial jurisdiction against the plaintiff, and in August, 1871 obtained a decree for nullity of marriage, on the ground that the plaintiff was legally incompetent to enter into the contract of marriage for the reason therein set forth. The marriage was therefore declared to be null and void to all intents and purposes whatever. It appears by the pleadings and evidence, and may be stated, that the trustee Fairchild resigned the trust in March, 1872 and assigned his estate and interest to his co trustee, William Smith, who in his answer submits that he is ready and willing to account for and pay over or apply the estate in his hands as he may be directed by the Court; that the plaintiff made an assignment for the benefit of his creditors on August 8, 1866, and that the trustees of that assignment reconveyed to him on December 10,1874. For the plaintiff it was contended that the marriage having thus been declared void ab initio, the defendant (William Smith) held the property on the first trust in the settlement-that is,for him (the plaintiff) until the marriage should be solemnised. For the defendant Fanny Jane Smith), it was argued that there is a distinction between a marriage void and voidable, also in the effect of each, and in the effect of a judgment pronounced in a suit instituted respecting either. It appears to us that this marriage was of the latter kind and that the judgment which declared it void did not disturb the operation of the settlement in her favour, as it was admitted would have been the case had the marriage been declared void ab initio, which was not the case here. It appears to us from the authorities that such a distinction does exist.
A void marriage is a mere nullity-Hemming v Price, 12 Mod 432; it may be assailed in every department of the jurisdiction of the court in a variety of ways, by persons not parties to the so called but wrongly styled marriage. They are allowed to show that it was a nullity at all time during the lifetime of the parties, and after their death. Illustrations of this are afforded in prosecutions for bigamy in which instances the crime was not committed, though there was proof that a second valid marriage was solemnised, the first being absolutely void 1 Hale, P C 693; Reg v St Giles, 11 Q. B 17. 3; R v Young, 5 Cox, 296; R v Brighton, 1 B. and S 449-in cases of ejectment, in which the decisions are numerous; in the case of establishing a will and administering the trusts under the direction of the Court Brook v Brook, 3 Sm; and Gif 481, 9 H of L. 195; and in the case of probate, Haydon v Gould, 1 Salk 119; when it was held that Haydon's demanding a right by the ecclesiastical law must prove himself a husband according to that law, in order to entitle himself to the administration. The effect in the case of a void marriage, is, that the civil disabilities, such as prior marriage, infancy, idiocy, make the marriage ipso facto void ab initio. Avoidable marriage, termed a marriage defacto, is valid for all civil purposes until dissolved The canonical disabilities, including certain corporal infirmities, make it void only after sentence of nullity has been obtained. If not declared null and void by the sentence of a competent court during the life of both husband and wife, it cannot be so declared after the death of either-Rennington v Cole, No 729; consequently the surviving husband may retain chattels of his wife reduced into possession during her coverture. The surviving wife may claim her dower and the other rights of a widow-Co. Lit 33 A. If either were to marry during the lifetime of the other it would be bigamy. In case of probate under 29 Car., 2 C. 3, administration would be granted to either survivor, and this is held not to be an ecclesiastical but a civil right Elliott v Gurr, 2 Phil 16. A marriage voidable on account of congenital malformation in a female can he avoided only by the person injured, that is, the husband , or in such a case as the present, by the wife-Norton v Seton, 3 Phil 147 ; not by the personal representation of either, and the party aggrieved must come promptly, for the maxim curtam diu tacuit applies-the party complaining must be sincere in the ground on which relief is prayed-M v C., L. R .2 P and D. 414; and the defect must be incurable.-A v B ,L.R 1. P and D. 529. These principles being established, the question is narrowed to the simple proposition-have the events found here from the time when the agreement for the settlement was made to the time of instituting this suit, produced the like effect as would have been produced if this had been a marriage void ab initio!? Are the intermediate rights acquired respected, or are they wholly abrogated by the judgment of dissolution? The case of Chapman v Bradley, 33 Beav. 61, reported on appeal, 33 L. J , Chy 139; was much relied upon for the plaintiff, and has been examined in the judgment of the learned primary judge. The marriage there was of a man with his wife's niece, and the first trust in the settlement entered into on the marriage between him and her was the same as in the present case, viz, " for the settler until the solemnisation of the intended marriage. Lord Justice Knight Bruce, in delivering judgment , says-the first question is what is the meaning to be ascribed to the word solemnised? It must mean validity and effectually solemnised. The ceremony of marriage was indeed gone through, but it was as ineffectual as if there never had been any such ceremony. In this the Lord Justice Turner concurred, and said the word "marriage ' must be taken to mean a valid and effectual marriage. Now, here the ceremony was gone through, and a marriage valid and effectual in the first instance to all intents and purposes until dissolved was entered into. To be consistent, the plaintiff should seek, not merely the declaration he invites the Court to make, but a restitution of the funds paid by the trustees under the settlement to the person who was absolutely, as far as third persons were concerned, his lawful wife during the period of her apparent coverture. He is not to be allowed credit for liberality in declining to ask for those receipts, nor to found on his abandonment of them an argument in his favour as to his right to the corpus of the subject of the settlement. In Wilkinson v Gibson, L R, 4 E q. 169; the Vice Chancellor, in delivering judgment, observed:- “By virtue of the contract the husband jure mariti acquires a right to all the property that may fall in or that may be got in by him during the coverture." And at page 167-'From the moment the declaration is made the marriage is destroyed and the vinculum no longer exists ' If this principle be applied equitably, it should operate reciprocally-the husband should get back the property subject to the settlement and all proceeds paid from the date of the marriage to the date of the dissolution, and should give up to the wife any choses in action reduced by him into possession. No such case has been discovered. How, it may be asked, could the parties so affected be placed in statu quo? In Swift v Wenman, L R 10 ,Eq 15; the personal property of the wife was settled on her-a dissolution of the marriage was obtained by reason of the adultery of the husband and his desertion of her. It was held that she was entitled to have the trust fund paid to her. That decision proceeded on the construction of the deed, independent of the doctrine laid down in Dyer 13 a; affirmed in Cage v Acton, 1 Ld Raymond, that it seemed reasonable she should have them, inasmuch as the cause and consideration of the gift was defeated. It may be observed incidentally that it does not appear from either of those reports, nor from the books cited in them, what the facts were, nor for what cause the divorce was granted. We have arrived at the conclusion that such a marriage as occurred between the parties here satisfies the language of the deed of settlement, and that there is so much substance in a voidable marriage that the solemnisation of such a marriage brings into operation the trusts in favour of the wife. We have given much attention to the arguments addressed to us as to the conduct of the plaintiff, and the conclusions drawn therefrom, as to his misrepresentation of his age, his fraud in contracting the marriage while cognisant as he must have been of his disability-his prolonged cohabitation with the lady under circumstances of such degradation, which have entailed on her irreparable injury-the impossibility of reinstating her in her original position-his having joined in the deed of separation admitting the validity of the settlement, interpreting it in a sense wholly different from that on which he now relies-and as to the reasons for which the costs were not given to him in the matrimonial suit, each of which, singly or all combined, disentitle him, as was argued at the bar, to the declaration sought. However, we do not deem it necessary to express an opinion upon any of them, nor to give the result of our examination of the numerous cases cited with respect to them. The judgment of the learned judge is affirmed, and the appeal dismissed with costs to the defendant Fanny Jane Smith.”
And so ends the long and convoluted law dealings of Joseph Bishop and his wife. It is impossible to make judgments from a distance of 136 years...all I can do is present the facts as gathered from newspapers of the period and court documents presented during the case, and allow readers to form an opinion themselves as to who was the "goodie" and who was the "baddie".
Maybe neither Joe nor Fanny played these roles...the court case may have simply been the result of a loveless arranged marrriage that was doomed to fail from the beginning (although I can't help but think that if Joseph's wealth had not diminished, Fanny would have remained content with her role in life as the fashionable young wife of a rich old businessman)
Port Phillip Herald article, September 4, 1876
The Argus seems to have been more restrained in its reporting than its contemporary, the Port Phillip Herald. Following is the Herald's version of the preceding Argus report re. Frederick Moule's conduct during the Bishop v Bishop case, complete with far more detail and interesting revelations!
BISHOP V BISHOP
-COMPLAINT AGAINST MR. MOULE, SOLICITOR-
In the Supreme Court today, before their Honors Mr. Justice Barry, Acting Chief Justice; Mr. Justice Fellows, and Mr. Justice Stephens, Dr. Mackay moved for a rule nisi calling upon Mr. F.G Moule, solicitor, to answer the matter in an affidavit filed by Miss Fanny Jane Smith (late Mrs. Bishop) charging him with having improperly divulged matter communicated by her to him in a privileged manner as her attorney.
It will be remembered that Mrs Bishop recently obtained a divorce from her husband, Joseph Bishop, late of the firm Bishop & Keep, wholesale ironmongers of this city. Certain questions of fact were decided by a jury, and at the trial Mr. Moule (who did not act for either parties in the suit) was called as a witness for the respondent, when he detailed a message which he stated he received from Mrs Bishop to communicate to her husband.
Today Dr. Mackay read the following sworn note of evidence given by Mr. Moule at the trial, as taken by one of the Counsel in court at the time.
“ W. Smith is the brother of Mrs. Bishop, and he is the trustee under the settlement made by Mr Bishop on his wife. I am an agent for Mr Smith.
I knew petitioner and respondent. I remember petitioner and respondent coming to my office with Mr. Fairchild as to a deed of separation. I do not remember whether I ever acted for Mrs. Bishop since her separation.
Jesse Fairchild resigned, and Mr W. Smith had been substituted.
I have given legal advice as a friend to Mrs. Bishop. I did not refuse to act for her until she had disclosed to me what she wanted me to do. She did not consult me on professional matters. She asked me to act for her as to divorce. I refused to act for either party.
Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the separation- after I had told her I would not act for her or Mr Bishop.
The message was “If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year or make some division of the capital.”
I said “That could not be done, unless you perjure yourself. You have to swear in your affidavit that there was no collusion between yourself and him.”
The adultery was stated to be with some servant maid to the house. I cannot remember the nature of the cruelty. She meant the separation as desertion.
I told her I did not think the separation was a ground. She said she would consult her solicitor. This conversation was some months before she went to Sydney. That was all that took place.
She came afterwards and said that she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.
After she returned she asked me to make another proposal to Mr. Bishop on other grounds, which I do not feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.”
Cross-examined by Mr Ireland, Q.C:
“I told Mr Bishop all this, as I was told by Mrs Bishop to tell him. She borrowed “McKean’ from me. I believe she opened ‘McKean’. I think I told her that adultery was not sufficient without cruelty.
Within the last few days I told Mrs Bishop I was going to be a witness. I did not say to her what I was going to say. I had no subpoena but that duces tuum. I might tell you more than you like. I do not think it right to have said what I just did.”
Miss Smith’s affidavit commenced by stating that Mr Moule, as agent for the trustees under the deed of settlement, received rents from property investment and paid them over at intervals to ___ ____ in August 1870, he prepared a deed of separation from her ex-husband, for which she paid him ten pounds ten shillings.
She then went to deal with the present subject of the complaint:
“In or about the month of January 1871, I called upon the said Frederick George Moule and asked him- firstly, whether he still acted as agent for the said Joseph Bishop, to which he replied “No”. Since the deed of separation had been signed by the said Joseph Bishop and myself we have passed each other in the street.
I then requested the said Frederick George Moule to inform me what were the general laws relating to divorce. He took up a law book and read from it certain passages, telling me cruelty and adultery were combined and asked “What charges do you consider you have against him?” (meaning Joseph Bishop).
I replied “Only the ___ ____ of a servant giving me notice to leave bedroom(???) the said Joseph Bishop went into her room but I thought nothing of it.
I also said that on the day of the deed being signed, the said Joseph Bishop told me he would take a cottage in the country and ___ the ________ knew.
As regards cruelty, I told him that Dr. Farrage considered my life was in danger by living with the said Joseph Bishop, and that his general unkindness depressed me very much; that the said Joseph Bishop had struck me, but not in the presence of a witness.
The said F.G Moule told me that in some cases words had been allowed to be considered cruelty combined with other charges, and he then said he thought I had not sufficient case.
I asked him if he thought it would be possible to have the case tried privately so as to save publicity. He replied “Only by bribing Mr. Bishop not to appear, and that in that case the Crown would defend it.”
He said I should not have an interview with the said Mr. Bishop, for that would be collusion, but that if it were done through a third person, and I could allow my conscience to make an affidavit to the effect that there was no collusion, and considering that it would only concern ourselves, there was after all no great crime or harm. That collusion of that kind was quite different to swearing another’s reputation or injuring anyone personally by doing so.
He fully explained to me that collusion was a consent of both parties in divorce law; that an affidavit was, in other words, swearing an oath before a commissioner, and he then promised to see the said Joseph Bishop on my account.
Miss Smith’s affidavit then went on to say that after she returned from Sydney, Mr. Moule informed her that Mr. Bishop wanted 3,600 pounds to go away, but that he (Moule) told him that it was impossible that sum could be paid him; and that Moule told her that Mr. Bishop would probably accept an offer if the suit was ever instituted. He further said that after his having seen Mr. Bishop he (Moule) thought it better she should get a stranger to act as her solicitor, for she knew well Mr. Bishop’s peculiar temper, and that as he (Moule) was acting for her in money matters, and had been solicitor for the firm of Bishop & Keep for many years, and was now friendly with Mr. Bishop, he would prefer not acting, but would give the matter due consideration.
She called upon Mr. Moule in a few days afterwards, when he said he did not think she had a case, and declined to act.
Miss Smith explained that during these communications with Mr. Moule she was not aware that she had the ground for obtaining a divorce upon which the marriage was afterwards declared null. She stated that Mr. Moule lent her a copy of ‘McKean On Divorce’ and that until he got into the witness box, she was not aware that her communications with him were otherwise than as to a professional man.
Dr. Mackay explained that the breach of confidence complained of consisted in this:- Mrs Bishop commissioned Mr. Moule to ask Mr. Bishop if he would consent to a divorce upon the ground of adultery, but he went further and stated in court whom the adultery was alleged to have been committed with.
Mr. Justice Fellows: “When an attorney is commissioned to bring a message to a third person, privilege ceases. It was quite competent for the petitioner to call Mr. Moule to repeat the message which he brought to him.”
Dr. Mackay: “But the attorney was never authorised to state with whom the adultery was committed. It was no part of the message.”
Mr. Justice Fellows: “It was involved in the message. There cannot be adultery without an adulteress. How could Bishop consent to a divorce on the ground of adultery without knowing with whom it was he was said to have committed it?”
Dr. Mackay: “But he does not say he told Mr. Bishop whom the adultery was alleged to have been committed with; and if he did not, he had no right to state it in court. The malice of the attorney is shown by his remark “I could tell you more than you like.”
Mr. Justice Barry observed that that might indicate that the witness was not at liberty to do so.
Mr. Justice Stephen said that the complaint involved a charge of perjury.
Dr. Mackay hoped that there would be no necessity for laying so serious a charge against the attorney.
Mr. Justice Stephen: The complaint amounts to that.
Mr. Justice Barry: No injury has been done to this lady?
Dr. Mackay: There might have been.
Mr. Justice Barry: Then their application is grounded on pure philanthropy and chivalry.
Dr. Mackay submitted that it was necessary for the honour of the profession and in order to maintain confidential relations between client and attorney that such matters as these should be dealt with by the court.
Mr. Justice Barry in giving the decision of the Court said Miss Smith’s affidavit did not state the precise time when Mr. Moule refused to act on her behalf, and therefore there was nothing to show when it was distinctly understood that she wished him to act as her attorney, and when confidential relations would at once begin.
When Moule refused, or declined to act, who could say which variation of the matter as now before the court was true.
The Court was simply asked to call upon the attorney to accuse himself more that he had excused himself. There was nothing in the affidavit of Miss Smith to answer, and the rule nisi was therefore refused.
-Port Phillip Herald, September 4, 1874.
This report is particularly valuable, as it makes reference to the grounds by which Fanny first proposed to gain a divorce...claiming that her husband had committed adultery with a servant of their house. This claim is in complete contradiction to the one which finally gained her legal freedom from her marriage to Joseph Bishop-the claim that he had never consummated their wedding because of his impotency.
Frederick Moule advised her that her claim of adultery, cruelty and desertion would not hold in court, so after going away with a legal book on the grounds for divorce, Fanny then came up with the "Impotency" claim.
In 1854, some twenty years before Fanny sought to have her marriage with Joseph annulled, a very famous case in England was conducted using the same line of attack...Effie Gray, the young wife of famous art critic John Ruskin, was granted a divorce on the grounds that he had never consummated their marriage.
Fanny Bishop also took this line...that in her mid-thirties, after ten years of marriage, she was still a virgin despite frequent unsuccessful attempts by her husband to remedy that situation. She maintained that she hadn't taken her case to court before that time because her doctor(who also happened to be her brother-in-law)had only recently informed her of what was involved in consummating a marriage.
As Frederick Moule hinted in court, there was much more behind the story of Fanny Smith Bishop, which will no doubt remain consigned to history. I have my "feeling" about the case, though, and think that she was a conniving, money-hungry witch, who took Joseph Bishop for a destructive ride that ultimately ruined his life.
Following is a time line of the marriage of Joseph Bishop and Fanny Jane Smith.
BISHOP V BISHOP
-COMPLAINT AGAINST MR. MOULE, SOLICITOR-
In the Supreme Court today, before their Honors Mr. Justice Barry, Acting Chief Justice; Mr. Justice Fellows, and Mr. Justice Stephens, Dr. Mackay moved for a rule nisi calling upon Mr. F.G Moule, solicitor, to answer the matter in an affidavit filed by Miss Fanny Jane Smith (late Mrs. Bishop) charging him with having improperly divulged matter communicated by her to him in a privileged manner as her attorney.
It will be remembered that Mrs Bishop recently obtained a divorce from her husband, Joseph Bishop, late of the firm Bishop & Keep, wholesale ironmongers of this city. Certain questions of fact were decided by a jury, and at the trial Mr. Moule (who did not act for either parties in the suit) was called as a witness for the respondent, when he detailed a message which he stated he received from Mrs Bishop to communicate to her husband.
Today Dr. Mackay read the following sworn note of evidence given by Mr. Moule at the trial, as taken by one of the Counsel in court at the time.
“ W. Smith is the brother of Mrs. Bishop, and he is the trustee under the settlement made by Mr Bishop on his wife. I am an agent for Mr Smith.
I knew petitioner and respondent. I remember petitioner and respondent coming to my office with Mr. Fairchild as to a deed of separation. I do not remember whether I ever acted for Mrs. Bishop since her separation.
Jesse Fairchild resigned, and Mr W. Smith had been substituted.
I have given legal advice as a friend to Mrs. Bishop. I did not refuse to act for her until she had disclosed to me what she wanted me to do. She did not consult me on professional matters. She asked me to act for her as to divorce. I refused to act for either party.
Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the separation- after I had told her I would not act for her or Mr Bishop.
The message was “If Mr Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year or make some division of the capital.”
I said “That could not be done, unless you perjure yourself. You have to swear in your affidavit that there was no collusion between yourself and him.”
The adultery was stated to be with some servant maid to the house. I cannot remember the nature of the cruelty. She meant the separation as desertion.
I told her I did not think the separation was a ground. She said she would consult her solicitor. This conversation was some months before she went to Sydney. That was all that took place.
She came afterwards and said that she was advised that she could make the affidavit without hurting my confidence. I took the message. She begged me to see Mr Bishop.
After she returned she asked me to make another proposal to Mr. Bishop on other grounds, which I do not feel at liberty to mention. I said I would try the second proposition. When Mr Bishop heard the grounds of divorce he refused altogether. I communicated his answer to her very soon after she came from Sydney.”
Cross-examined by Mr Ireland, Q.C:
“I told Mr Bishop all this, as I was told by Mrs Bishop to tell him. She borrowed “McKean’ from me. I believe she opened ‘McKean’. I think I told her that adultery was not sufficient without cruelty.
Within the last few days I told Mrs Bishop I was going to be a witness. I did not say to her what I was going to say. I had no subpoena but that duces tuum. I might tell you more than you like. I do not think it right to have said what I just did.”
Miss Smith’s affidavit commenced by stating that Mr Moule, as agent for the trustees under the deed of settlement, received rents from property investment and paid them over at intervals to ___ ____ in August 1870, he prepared a deed of separation from her ex-husband, for which she paid him ten pounds ten shillings.
She then went to deal with the present subject of the complaint:
“In or about the month of January 1871, I called upon the said Frederick George Moule and asked him- firstly, whether he still acted as agent for the said Joseph Bishop, to which he replied “No”. Since the deed of separation had been signed by the said Joseph Bishop and myself we have passed each other in the street.
I then requested the said Frederick George Moule to inform me what were the general laws relating to divorce. He took up a law book and read from it certain passages, telling me cruelty and adultery were combined and asked “What charges do you consider you have against him?” (meaning Joseph Bishop).
I replied “Only the ___ ____ of a servant giving me notice to leave bedroom(???) the said Joseph Bishop went into her room but I thought nothing of it.
I also said that on the day of the deed being signed, the said Joseph Bishop told me he would take a cottage in the country and ___ the ________ knew.
As regards cruelty, I told him that Dr. Farrage considered my life was in danger by living with the said Joseph Bishop, and that his general unkindness depressed me very much; that the said Joseph Bishop had struck me, but not in the presence of a witness.
The said F.G Moule told me that in some cases words had been allowed to be considered cruelty combined with other charges, and he then said he thought I had not sufficient case.
I asked him if he thought it would be possible to have the case tried privately so as to save publicity. He replied “Only by bribing Mr. Bishop not to appear, and that in that case the Crown would defend it.”
He said I should not have an interview with the said Mr. Bishop, for that would be collusion, but that if it were done through a third person, and I could allow my conscience to make an affidavit to the effect that there was no collusion, and considering that it would only concern ourselves, there was after all no great crime or harm. That collusion of that kind was quite different to swearing another’s reputation or injuring anyone personally by doing so.
He fully explained to me that collusion was a consent of both parties in divorce law; that an affidavit was, in other words, swearing an oath before a commissioner, and he then promised to see the said Joseph Bishop on my account.
Miss Smith’s affidavit then went on to say that after she returned from Sydney, Mr. Moule informed her that Mr. Bishop wanted 3,600 pounds to go away, but that he (Moule) told him that it was impossible that sum could be paid him; and that Moule told her that Mr. Bishop would probably accept an offer if the suit was ever instituted. He further said that after his having seen Mr. Bishop he (Moule) thought it better she should get a stranger to act as her solicitor, for she knew well Mr. Bishop’s peculiar temper, and that as he (Moule) was acting for her in money matters, and had been solicitor for the firm of Bishop & Keep for many years, and was now friendly with Mr. Bishop, he would prefer not acting, but would give the matter due consideration.
She called upon Mr. Moule in a few days afterwards, when he said he did not think she had a case, and declined to act.
Miss Smith explained that during these communications with Mr. Moule she was not aware that she had the ground for obtaining a divorce upon which the marriage was afterwards declared null. She stated that Mr. Moule lent her a copy of ‘McKean On Divorce’ and that until he got into the witness box, she was not aware that her communications with him were otherwise than as to a professional man.
Dr. Mackay explained that the breach of confidence complained of consisted in this:- Mrs Bishop commissioned Mr. Moule to ask Mr. Bishop if he would consent to a divorce upon the ground of adultery, but he went further and stated in court whom the adultery was alleged to have been committed with.
Mr. Justice Fellows: “When an attorney is commissioned to bring a message to a third person, privilege ceases. It was quite competent for the petitioner to call Mr. Moule to repeat the message which he brought to him.”
Dr. Mackay: “But the attorney was never authorised to state with whom the adultery was committed. It was no part of the message.”
Mr. Justice Fellows: “It was involved in the message. There cannot be adultery without an adulteress. How could Bishop consent to a divorce on the ground of adultery without knowing with whom it was he was said to have committed it?”
Dr. Mackay: “But he does not say he told Mr. Bishop whom the adultery was alleged to have been committed with; and if he did not, he had no right to state it in court. The malice of the attorney is shown by his remark “I could tell you more than you like.”
Mr. Justice Barry observed that that might indicate that the witness was not at liberty to do so.
Mr. Justice Stephen said that the complaint involved a charge of perjury.
Dr. Mackay hoped that there would be no necessity for laying so serious a charge against the attorney.
Mr. Justice Stephen: The complaint amounts to that.
Mr. Justice Barry: No injury has been done to this lady?
Dr. Mackay: There might have been.
Mr. Justice Barry: Then their application is grounded on pure philanthropy and chivalry.
Dr. Mackay submitted that it was necessary for the honour of the profession and in order to maintain confidential relations between client and attorney that such matters as these should be dealt with by the court.
Mr. Justice Barry in giving the decision of the Court said Miss Smith’s affidavit did not state the precise time when Mr. Moule refused to act on her behalf, and therefore there was nothing to show when it was distinctly understood that she wished him to act as her attorney, and when confidential relations would at once begin.
When Moule refused, or declined to act, who could say which variation of the matter as now before the court was true.
The Court was simply asked to call upon the attorney to accuse himself more that he had excused himself. There was nothing in the affidavit of Miss Smith to answer, and the rule nisi was therefore refused.
-Port Phillip Herald, September 4, 1874.
This report is particularly valuable, as it makes reference to the grounds by which Fanny first proposed to gain a divorce...claiming that her husband had committed adultery with a servant of their house. This claim is in complete contradiction to the one which finally gained her legal freedom from her marriage to Joseph Bishop-the claim that he had never consummated their wedding because of his impotency.
Frederick Moule advised her that her claim of adultery, cruelty and desertion would not hold in court, so after going away with a legal book on the grounds for divorce, Fanny then came up with the "Impotency" claim.
In 1854, some twenty years before Fanny sought to have her marriage with Joseph annulled, a very famous case in England was conducted using the same line of attack...Effie Gray, the young wife of famous art critic John Ruskin, was granted a divorce on the grounds that he had never consummated their marriage.
Fanny Bishop also took this line...that in her mid-thirties, after ten years of marriage, she was still a virgin despite frequent unsuccessful attempts by her husband to remedy that situation. She maintained that she hadn't taken her case to court before that time because her doctor(who also happened to be her brother-in-law)had only recently informed her of what was involved in consummating a marriage.
As Frederick Moule hinted in court, there was much more behind the story of Fanny Smith Bishop, which will no doubt remain consigned to history. I have my "feeling" about the case, though, and think that she was a conniving, money-hungry witch, who took Joseph Bishop for a destructive ride that ultimately ruined his life.
Following is a time line of the marriage of Joseph Bishop and Fanny Jane Smith.
The Court Case Continued
The Bishop v Bishop divorce case received coverage in the local newspapers of the time, although because of the 'sensitive' nature of the case, details were not specified beyond vague suggestion.
In September of 1874, after the case was over,Frederick Moule, an attourney who had dealings with both parties, was called before the Supreme Court to answer 'certain statements' in an affidavit put forward by Fanny Jane Smith. The Melbourne Argus, in its report of the ensuing events, provided an excellent summary of the proceedings of the divorce case, so I will make use of it in my coverage of same...
The applicant, Miss Smith, was married in March 1864 to Joseph Bishop. In contemplation of the marriage, a deed of settlement was executed by Jospeh Bishop in her favour.Mr. Moule, acting under the directions of the trustees of the settlement, received the income derived from the investments of the property conveyed by the settlement, and at intervals of about six months Fanny Bishop received from Mr.oule the proceeds of the income, minus his commission.
In 1870, in consequence of her ill health, she seperated from her husband, and various proposals about a deed of seperation were made on her behalf by Mr Moule to Mr. Bishop.
In July of 1870, a deed of seperation was at last prepared by Mr. Moule.Accompanying the Deed was the following letter from Mr Moule to Mrs Bishop:-
" I send your part of the deed of seperation as requested.The charges against you amount to ten pounds ten shillings."
In January of 1871, Fanny Bishop called upon Frederick Moule and asked him whether he still acted for Joseph Bishop, to which he replied "No- since the deed of seperation had been signed, Bishop and myself have passed eachother in the street."
Fanny then requested Frederick Moule to inform her what were the general laws relating to divorce, and if she were to go ahead with proceedings would they be heard privately? Mr. Moule's reply was "No...not unless Mr Bishop was bribed not to appear, in which case the Crown would defend."
He further advised Fanny not to have an interview with her husband, as that would be viewed as collusion, but if it were done through a third person, and she could allow her conscience to make an affidavit to the effect that there would be no collusion; and considering that it would only concern themselves, there was no great crime or harm. He further said that collusion of that kind was quite different to swearing another's reputation away, or injuring anyone personally by doing so. At this time, Fanny Bishop was not aware that she had the grounds for divorce on which she ultimately succeeded.
Some time after this Frederick Moule told Fanny Bishop that her husband was willing to "go away" for three hundred pounds.Some time after this, Moule then informed Fanny that she must get herself a stranger to act as her proctor, as he was again on friendly terms with Joseph Bishop. He further stated that as he had acted as her solicitor in money matters,and had been solicitor to the firm of Bishop and Keep, he would prefer not to act for Fanny in divorce proceedings, although he would give the matter consideration.
A few days later Fanny Bishop called on frederick Moule, and he told her that he did not think that she had a case, and declined to act on her behalf. He added that Joseph Bishop now seemed unwilling to accept any proposal made to him as a settlement.
Some days later, Fanny called on Mr. Moule and he lent her the work called "McKean On Divorce". When she returned it to him,they had a conversation on the laws of divorce, and he told her that she seemed to be well up on the subject, and knew more about it than he did.
In her affidavit, Fanny stated that there was no mention of friendship between herself and Frederick Moule, and that as far as she was concerned he was acting as her solicitor and in no other capacity, as she at that time had no other solicitor acting for her.
During the divorce hearing, Frederick Moule was called as a witness on behalf of Joseph Bishop, and the petitoner's counsel objected, stating that any communications between Fanny and Frederick were priviledged. This objection was overruled, and Frederick gave the following evidence:
"I do not remember whether I acted for Mrs Bishop since the speration. I have given legal advice as a friend to Mrs Bishop.I did not refuse to act for her until she disclosed what she wished me to do.She did not consult me on professional matters. She asked me to act for her as to divorce.I refused to act for either party. Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the seperation, and after I had told her that I would not act for her or Mr. Bishop. The message was "If Mr. Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year, or make some division of the capital." I said "That cannot be done unless you perjure yourself. You have to swear in your affidavit that there was no collusion between you and him." She meant the seperation by the desertion. I told her I did not think the seperation was a ground.She said she would consult her solicitor. She begged me to see Mr. Bishop. At another interview she asked me to make another proposal to Mr. Bishop on other grounds, which I don't feel at liberty to mention.I said I would try the second proposition.When Mr. Bishop heard the grounds of divorce, he refused altogether. I told Mr. Bishop all this as I was told by Mrs. Bishop to tell him."
In September of 1874, after the case was over,Frederick Moule, an attourney who had dealings with both parties, was called before the Supreme Court to answer 'certain statements' in an affidavit put forward by Fanny Jane Smith. The Melbourne Argus, in its report of the ensuing events, provided an excellent summary of the proceedings of the divorce case, so I will make use of it in my coverage of same...
The applicant, Miss Smith, was married in March 1864 to Joseph Bishop. In contemplation of the marriage, a deed of settlement was executed by Jospeh Bishop in her favour.Mr. Moule, acting under the directions of the trustees of the settlement, received the income derived from the investments of the property conveyed by the settlement, and at intervals of about six months Fanny Bishop received from Mr.oule the proceeds of the income, minus his commission.
In 1870, in consequence of her ill health, she seperated from her husband, and various proposals about a deed of seperation were made on her behalf by Mr Moule to Mr. Bishop.
In July of 1870, a deed of seperation was at last prepared by Mr. Moule.Accompanying the Deed was the following letter from Mr Moule to Mrs Bishop:-
" I send your part of the deed of seperation as requested.The charges against you amount to ten pounds ten shillings."
In January of 1871, Fanny Bishop called upon Frederick Moule and asked him whether he still acted for Joseph Bishop, to which he replied "No- since the deed of seperation had been signed, Bishop and myself have passed eachother in the street."
Fanny then requested Frederick Moule to inform her what were the general laws relating to divorce, and if she were to go ahead with proceedings would they be heard privately? Mr. Moule's reply was "No...not unless Mr Bishop was bribed not to appear, in which case the Crown would defend."
He further advised Fanny not to have an interview with her husband, as that would be viewed as collusion, but if it were done through a third person, and she could allow her conscience to make an affidavit to the effect that there would be no collusion; and considering that it would only concern themselves, there was no great crime or harm. He further said that collusion of that kind was quite different to swearing another's reputation away, or injuring anyone personally by doing so. At this time, Fanny Bishop was not aware that she had the grounds for divorce on which she ultimately succeeded.
Some time after this Frederick Moule told Fanny Bishop that her husband was willing to "go away" for three hundred pounds.Some time after this, Moule then informed Fanny that she must get herself a stranger to act as her proctor, as he was again on friendly terms with Joseph Bishop. He further stated that as he had acted as her solicitor in money matters,and had been solicitor to the firm of Bishop and Keep, he would prefer not to act for Fanny in divorce proceedings, although he would give the matter consideration.
A few days later Fanny Bishop called on frederick Moule, and he told her that he did not think that she had a case, and declined to act on her behalf. He added that Joseph Bishop now seemed unwilling to accept any proposal made to him as a settlement.
Some days later, Fanny called on Mr. Moule and he lent her the work called "McKean On Divorce". When she returned it to him,they had a conversation on the laws of divorce, and he told her that she seemed to be well up on the subject, and knew more about it than he did.
In her affidavit, Fanny stated that there was no mention of friendship between herself and Frederick Moule, and that as far as she was concerned he was acting as her solicitor and in no other capacity, as she at that time had no other solicitor acting for her.
During the divorce hearing, Frederick Moule was called as a witness on behalf of Joseph Bishop, and the petitoner's counsel objected, stating that any communications between Fanny and Frederick were priviledged. This objection was overruled, and Frederick gave the following evidence:
"I do not remember whether I acted for Mrs Bishop since the speration. I have given legal advice as a friend to Mrs Bishop.I did not refuse to act for her until she disclosed what she wished me to do.She did not consult me on professional matters. She asked me to act for her as to divorce.I refused to act for either party. Mrs Bishop used to come on friendly terms to me about rents. I bore a message from her to the respondent. This was after the seperation, and after I had told her that I would not act for her or Mr. Bishop. The message was "If Mr. Bishop would consent to a divorce for adultery, cruelty and desertion, or not appear, I will allow him one hundred pounds a year, or make some division of the capital." I said "That cannot be done unless you perjure yourself. You have to swear in your affidavit that there was no collusion between you and him." She meant the seperation by the desertion. I told her I did not think the seperation was a ground.She said she would consult her solicitor. She begged me to see Mr. Bishop. At another interview she asked me to make another proposal to Mr. Bishop on other grounds, which I don't feel at liberty to mention.I said I would try the second proposition.When Mr. Bishop heard the grounds of divorce, he refused altogether. I told Mr. Bishop all this as I was told by Mrs. Bishop to tell him."
Thursday, January 28, 2010
More photos of Fanny Jane Smith Bishop
Above: Two very different photos of Fanny Jane Smith. The first is of a younger, softer Fanny. She is fuller in the face than the older woman who appears in the photo underneath.
The bottom photo is of an older, more polished, confident woman.Both photos were taken in Melbourne in the 1860s.
Court Procedings-Bishop V Bishop
Above: Joseph Bishop, the respondent in the divorce case Bishop V Bishop.
In late July, 1873, Fanny Jane Bishop presented her affidavit, stating her case and her wish for her marriage to be nullified.Joseph responded to her statements on September 9, and from then on the official documents bounced back and forward from legal side to the other.
The following blog entries contain copies of the original court documents concerning the lead up to the actual Court hearing.
The 1870s-Joseph Bishop's painful last years.
The family story passed down to me concerning the separation of Joseph Bishop and his second wife, Fanny, was told to me by my great Uncle, Gordon Oakley.Joseph Bishop was his great-great Uncle, and Gordon's grandfather, Henry Bishop, lived with the Oakleys until his death in 1918. It was Henry, Joseph's nephew, who told his grandsons the tale of the wicked Fanny Jane Smith,the gold digger who married Joe for his wealth, spent it all quickly and then divorced him because of his impotency.
Great story, but how to prove if it was true? On March 18, 2000, there arrived for me in the mail a thick collection of documents from the Public Record Office of Victoria...so thick, in fact, that it had to be collated into two stapled books rather than just one.It was the divorce file relating to Joseph Bishop and Fanny Jane Smith, "falsely called Bishop", and what I found inside was simply amazing.
Briefly, Fanny was accusing Joe of causing her physical and mental anguish by failing to consummate their marriage, despite frequent attempts over the three years of their marriage prior to her going back to England.
According to Fanny,her husband's impotency had led to the condition mennorrhagia, or hemorrhage from the uterus, and her doctor (who also happened to be her future brother-in-law) had told her that if she didn't leave him her life would be in danger.
Fanny stayed with her parents until, after pleading by Joseph for her to come back to him, she returned to Melbourne on the ship 'Agamemnon' in November of 1869.They lived together from January 1870 until August 14 of the same year. On this date they separated permanently, having Joseph's solicitor Frederick Moule draw up a deed of separation.
For almost three years all seems to have remained quiet...Joseph continued to earn a living as a mining speculator, and Fanny was living comfortably on the earnings of her marriage property settlement.
Then, in July of 1873, Fanny decided that she had a chance at total separation from Joseph. After talking to Frederick Moule about methods by which she could achieve a divorce from Joseph, and having Joseph refuse two offers that she made him, she came up with a risky plan that would either ruin her reputation forever or gain her freedom. She claimed in court that her doctor made her aware of the facts of what constituted the consummation of a marriage in 1872, and until then she was not aware that it was grounds for an annulment.Coincidentally, Frederick Moule had also lent Fanny a well-known text called 'McKean On Divorce', and commented to her at its return that she now knew more on the subject than he did.
On July 23, 1873, the first document by “Fanny Jane Smith falsely called Bishop” was filed in her quest to have her marriage with Joseph Bishop declared null. Fanny’s address at this time was “12 Jolimont Road, Melbourne”.
Great story, but how to prove if it was true? On March 18, 2000, there arrived for me in the mail a thick collection of documents from the Public Record Office of Victoria...so thick, in fact, that it had to be collated into two stapled books rather than just one.It was the divorce file relating to Joseph Bishop and Fanny Jane Smith, "falsely called Bishop", and what I found inside was simply amazing.
Briefly, Fanny was accusing Joe of causing her physical and mental anguish by failing to consummate their marriage, despite frequent attempts over the three years of their marriage prior to her going back to England.
According to Fanny,her husband's impotency had led to the condition mennorrhagia, or hemorrhage from the uterus, and her doctor (who also happened to be her future brother-in-law) had told her that if she didn't leave him her life would be in danger.
Fanny stayed with her parents until, after pleading by Joseph for her to come back to him, she returned to Melbourne on the ship 'Agamemnon' in November of 1869.They lived together from January 1870 until August 14 of the same year. On this date they separated permanently, having Joseph's solicitor Frederick Moule draw up a deed of separation.
For almost three years all seems to have remained quiet...Joseph continued to earn a living as a mining speculator, and Fanny was living comfortably on the earnings of her marriage property settlement.
Then, in July of 1873, Fanny decided that she had a chance at total separation from Joseph. After talking to Frederick Moule about methods by which she could achieve a divorce from Joseph, and having Joseph refuse two offers that she made him, she came up with a risky plan that would either ruin her reputation forever or gain her freedom. She claimed in court that her doctor made her aware of the facts of what constituted the consummation of a marriage in 1872, and until then she was not aware that it was grounds for an annulment.Coincidentally, Frederick Moule had also lent Fanny a well-known text called 'McKean On Divorce', and commented to her at its return that she now knew more on the subject than he did.
On July 23, 1873, the first document by “Fanny Jane Smith falsely called Bishop” was filed in her quest to have her marriage with Joseph Bishop declared null. Fanny’s address at this time was “12 Jolimont Road, Melbourne”.
The Soho Foundry, Ballarat
Top: From the Argus newspaper, Saturday, September 8, 1866.
Middle: Argus, Wednesday, October 3, 1866.
Bottom: Soho Foundry, Ballarat,under its new ownership by William Errington, c. 1867.
The wheels fall off Joe's wagon- 1866.
Above: This advertisement appeared in the Ballarat Directory of 1865-66.
In the 'Argus' of 31 July, 1866 the following item appeared: “We understand that the bills of Messrs Joseph Bishop & Co, iron founders, Ballarat, have been returned dishonoured. A meeting of creditors will be called in a few days."
This was followed on August 2, 1866 with “Messrs Joseph Bishop & Co of Ballarat, whose suspension we noted a few days ago, have called a meeting of their creditors for Friday next. The total liabilities are said not to be in excess of ten thousand pounds."
Four days later, on August 6, 1866: “A meeting of the creditors of Messrs Joseph Bishop and Co, iron founders, Ballarat, resulted in the assignment of the estate to Messrs Jenner and H. Henty, for the general benefit. The statement submitted to the meeting showed liabilities amounting to 9,141 pounds and assets estimated at 8,020 pounds. The contingent liabilities amount to five thousand pounds.”
By September of 1866 the 'Argus' was carrying advertisements for the sale of Soho Foundry, Ballarat-land, machinery, buildings and equipment.In December all claims on the estate of Joseph Bishop & Co were being called for, and it was the end of the road for Joseph Bishop's long career as an ironmonger. The Soho Foundry was taken on by an engineer named William Errington, although in February of 1868 the Sydney Morning Herald reported that "Soho Foundry, Ballarat, is to be turned into a brewery"
The fall of Joseph Bishop's finances corresponded with his Fanny's desire to remain his wife.In March of 1867 she boarded the ship 'Holmsdale' and sailed back to England, where she resided with her parents, Robert and Rebecca Smith, at Chew Magna Somersetshire, for two years.
Subscribe to:
Posts (Atom)
