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.
Sunday, March 28, 2010
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”.
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