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.