[libel - conveyancing - married women's legal disabilities - Supreme Court, disagreement between judges - Banco Court, disagreement between judges - new trial - appeal]

Rose v. Smith

Rose v. Wickham

Supreme Court of Van Diemen's Land

Pedder C.J., 4 October 1837

Source: Cornwall Chronicle, 7 October 1837

Mr. Stephen opened the case for the Plaintiff, and in the course of a most eloquent and forcible Address, which we regret our limits will not allow us to do justice to - stated, that this is an Action for a Libel, published in the Cornwall Chronicle of 11th March 1837. He then read it - and continued. Gentlemen, if there be any truth in this statement of Defendant, and if he be guilty of such imputations as are here, cast upon him, he has been guilty of fraud, and that he has suborned another man, who I am told, is a witness in this case - to assist him in the completion of the fraud; unless he can clear his character from this imputation, it is ruined forever. The character of the Libel is self-apparent; it imputes to him that he has obtained the property in question unfairly. After adverting to the injury persons are liable to sustain, by employing cheap but incompetent persons as Conveyances - he concluded one of the most splendid speeches ever heard within the walls of the Court House by saying, that the main question to be proved is, whether or not the Deeds were obtained by fraud.

Mr. W. L. Goodwin, sworn. - I am Proprietor of the Cornwall Chronicle; I produce the M. S. of the Libel in question; it was published in the Cornwall Chronicle of 11th March, 1837; I do not know whose signature is to it; I received it at my Office from Mary Smith; it was brought for the purpose of being advertised; it was inserted three following weeks; I knew at the time it was brought it referred to the Plaintiff. The Cornwall Chronicle has a very extensive circulation in Town and Country.

Cross-examined by Mr. Horne. - I know Defendant in this Action, and I swear the same Mary Smith who brought the M.S. is the same Defendant.

Mr. F. Smith, sworn - I am Clerk to Messrs Wickham and Horne; I saw Mary Smith write this signature; I believe she was acquainted with the nature of the contents - this is the “Caution to the Public: - which was inserted in the Cornwall Chronicle; I do not know if she was acquainted with the nature of this paper -but she wrote the Signature.

Cross-examined. - I have been with Mr. Wickham two years last April; I know that Mr. Wickham was Solicitor for Mr. Rose up to the latter end of 1836; the Defendant in this Action was also a Client of Mr. Wickham’s occasionally.

George Jubb, examined - I know Mr. Rose, the Plaintiff in this Action, and I have known Mrs. Smith the Defendant 245 years; I have known Mrs. Rose from her infancy; her name was Isabella Robley; after she had been a few week’s in this Colony, she went to, and was brought up at Thomas Smith’s, the deceased husband of Defendant’s; I have seen her many times at Mary Smith’s since his death; I never heard Mrs Smith had children; Mrs. Rose was usually called “Bella Robley;” her father belonged to the 73rd regiment, and went to Sierra Leon; I never heard of his death or return; I have heard Mrs. Smith speak of Mrs. Rose, and she spoke of her comparatively as her own child; I know that Mrs. Rose had property on Mrs. Smith’s farm; I have heard Mrs. Smith speak many times about it; she had at one time stock and landed property; I understood from Mrs. Smith that she intended to leave all her own property to Mrs. Rose; I have often head her say so. In the early part of 1832, Mrs. Smith asked me to make out some papers; I drew out an agreement which she signed the following morning; her instructions to me were - to secure her property to Mrs. Rose; it was in the night; Mrs. Smith was ill, and I was called out of bed; she was quite sensible when she gave me these instructions and also when she signed the agreement next morning; I afterwards saw her sign five Feoffments the following year; I was witness to those deeds; these are the same; they were executed by her in the presence of myself, David Rose, and Alexander Cameron; Cameron is gone to Port Jackson; she perfectly understood the nature of these Deeds before she executed them; they were drawn by Mr. Coulson; he was not present when they were executed; they were executed at Corra Lynn; two days after Mrs. Smith went into her garden at Norfolk Plains with Mr. And Mrs. Rose, and gave Mrs. Rose a sprig from a tree in the name of the whole; she then went into her bedroom and showed Mrs. Rose some silver spoons and other property she had concealed there; I was sitting opposite the door and saw all that passed; she gave up some receipts for stores that had been delivered, and said, they may be of use to you hereafter; four of the Farms were at Norfolk Plains and one at Antill Ponds; Mrs. S. resides on one of the four farms, and is the same where she gave the sprig; Robley, Mrs. Rose’s father, left property in the hands of Smith, and I have seen part of it after Smith’s death in the possession of Mary Smith.

[This witness underwent a severe cross-examination from Mr. Horne; and thought he appeared not to hear some questions so well as others, his memory seemed most retentive - and nothing material was elicited to shake his former evidence. The dryness of his manner and occasional keenness of reply to Mr. Horne, kept the Court in a continual laughter.]

Cross-examined - I received my instructions to prepare the agreement at mid-night; Mrs. Smith was sober; I once sat in the stocks - it was not for “a little confidence in swearing,” - it was not for perjury. “What were you put in the stock for then?” - “Why, for having a few words with a person.” - “Was that all?” - “Yes, that was a curious way of doing justice then, wasn’t it?” - [A roar of laughter.] This agreement was drawn at the British Hotel; I did not practice as a Conveyancer at the time. Look at this Deed - was it in this state when Mrs. Smith signed it? I cannot say as to that - (There was an erasure in each of the five Deeds.) - Where were those Deed executed? At Mr. Roses’, Corra Lynn. Oh! And the day following Mr. And Mrs. Rose went with Mrs. Smith to Norfolk Plains, and she plucked off the sprig and gave it?” - “Yes - There was no Lawyer present on the part of Mrs. Smith at the time; I did not see where Mrs. Smith had secreted the spoons in the bed-room; I saw her show Mrs. Rose her grave XXXiliments[??] and other property; it was generally understood that Mrs. Smith should not be dispossessed during her life time; I suppose when the Deeds were executed, Mrs. Smith intended to leave the property to Mrs. Rose after he own death; I read over the Deeds, but did not point out to her that she was giving away all interest in the property during her life; I am now in the employ of Mr. Rose, at George Town; it was business - and not to see the Deed executed, that I went to Corra Lynn on; I knew they were there; I do not consider it accident by which I was at Norfolk Plains the day before - at Corra Lynn on the same day they were executed - and back again at Norfolk Plains to see the sprig delivered; I was there, but did not go on purpose.

Re-examined by Mr. Stephen, - It was always Mr. Rose’s intention that Mrs. Smith should have the property during her life.

David Rose, sworn - I am cousin to the Plaintiff; I saw Mary Smith sign these five Deeds; Alexander Cameron, myself and George Jubb witnessed them; they were then given to Mr. Alexander Rose.

Cross-examined. - The Deeds were signed at Corra Lynn in 1833; there has been no alteration in them since they were signed; it was between 10 and 12 in the day when they were signed; it was explained to Mrs. Smith, that the Deeds were to give over the property to Mr. A Rose and his wife; I did not understand it was to be given up before her death; there was no Lawyer present for Mrs. Smith. Is not Mrs. Smith an old woman? I can’t say she is an old woman. Is she a young woman? No - not very young. Now, is she really not an elderly woman? Why, if I called her so - she might be affronted!

August William Coulson - I knew the Defendant, Mrs. Smith; I saw her4 at Mr. Rose’s, the British Hotel, in March or April 1832; I had a conversation with her about her property then; she said she had been thrown from her horse, and was afraid she should break her neck some day going out of town, and wished to secure her property to Mrs. Rose; the next morning I saw her again on the subject of preparing some Deeds; she said it was always her intention to give everything to Mrs. Rose, whom she called “her dear child,” and desired me to prepare a Deed of gift of the property; some conversation passed about the boundaries of the Farm; she said the original Deeds had been stolen; I requested Mr. Rose to obtain a description of the Farms; about two months after I saw Mrs. Smith at the British Hotel, and read over the Deeds of gift I had drawn; I read over two of them; when she said, “I suppose they are all alike, - as I wish to leave all to my dear child” - meaning Mrs. Rose; I told Mrs Smith it would be necessary to give Mr. Rose a Power of Attorney to receive the new Grants when they were completed; Mrs. Smith desired me to prepare it; the description of one of the Farms was not filled up at the time; it was Houghton’s Farm of 100 acres, at Antill’s Ponds; after the Deeds were engrossed they were given to Mr. Rose; I never saw them again until now.

Cross-examined. - I prepared these Deeds at the British Hotel; I received the instructions in about Mach or April 1832; I do not know whether any alteration had taken place in Mrs. Smith’s mind in favour of Mrs. Rose - with regard to these Deeds; I understood Mrs. Smith’s wish to be, when I received these instructions - that Mrs. Rose should have her property after her death; it was by her own wish that I prepared the Deeds; it was about 8 or 9 in the morning when she gave me the instructions; she was quite sober then, but I believe she was in the habit of drinking to excess; I have heard her many times say, that it was her wish to leave all to “Bella,” meaning Mrs. Rose.

Samuel Waterhouse Preston Farrar - I know the parties in this case; Mr. Rose called upon me in November last, and told me he had five Deeds of Feoffments, and asked if it was necessary they should be Registered, and asked me if I would prepare the Memorials; some few days after I did so, and told him to call upon me to sign them, but on re-consideration, I thought that as such a time had elapsed since the execution of the Deeds, it would be better for Mrs. Sith to sign the Memorials; on the 15th, he told me she would be there the following day, and asked me to be there; I attended, and Mrs. Smith signed the Memorials; I read the Deeds over to her before she signed the Memorials; there was nothing said about Messrs. Wickham and Horne at that time; I have no thing to do with them; I prepare the Memorials at the Ship Inn; William Buckley Sneade lived there, and he and I together compared the Memorials with the draft.

Cross-examined. - I received the Deeds at Mr. Rose’s, for the purpose of reading them to Mrs. Smith; I knew from Mr. Rose, that Mrs. Smith was applying for the grants in her own name; I will swear that Mrs. Smith told me that those grants when obtained were to be given to Mr. Rose; I observed these erasures in the description of Mr. Rose in each of the Deeds; they are not in my hand writing, nor that of Mr. Rose; Mrs. Smith had no Attorney on her part present; I explained to her at the time, that by executing these Deeds she immediately gave up all title to the property; she said she knew it, but she had the greatest confidence in Mr. and Mrs. Rose.

Mr, Richard Heaney - I have known the Defendant since 1819; I have known Mrs. Rose since the same time; I have seen them frequently together, and heard Mrs. Smith speak of her as her God-daughter, and say that she would leave her all her property at her death; I have never heard Mrs. Smith speak of any relations of her own.

George Gore, Patrick Brenan, and Robert Beams, corroborated the last witness.

Mr. Horne. - addressed the Court at great length; the main point was to shew that the intention of the Defendant was, to retain her property for her own life, and then give it to Mrs. Rose; that, although this was an Action brought for a Libel, yet the effect of a verdict for the plaintiff would be to deprive the Defendant, who is very far advanced in years of her all, and reduce her in her old age to penury and want.

The Chief Justice - recapitulated the evidence, and the Jury brought in a verdict for the Defendant.

Pedder C.J., 5 October 1837

Source: Cornwall Chronicle, 14 October 1837[1]

Rose v Wickham - Damages laid at £1000

This was an Action for libel, arising out of the same circumstances as were the subject of yesterday’s trial - Rose v Smith - It was brought against Mr. F. D. Wickham as Solicitor for Mrs. Smith - for writing the Notice, headed “Caution to the Public,” which appeared in the Cornwall Chronicle of 11th March last.

Mr. Stephen opened the case fort the Plaintiff, and called -

Mr. Frederick Smith. - I am Clerk in the Office of Messrs. Wickham and Horne; I saw Mrs. Smith sign this document; I copied it by direction of Mr. Wickham from a draft prepared by himself, and afterwards Mary Smith’s signature was attached; at that time Mary Smith was a Client of Messrs. Wickham and Horne’s; after I copied it, I gave it to Mr. Wickham. (The MS. Was produced and read.)

Mr. W. L. Goodwin was called. But his evidence was not material to the case.

William Buckley Sneade - proved, that the Manuscript was brought to the Office of the Cornwall Chronicle by Mary Smith.

This was Plaintiff’s case.

Mr. Horne, as Counsel for the Defendant, trusted the Jury would not countenance the bringing Actions against two persons for the same alleged libel; he designated the present Action as the Lawyer’s Action, as it could put money in no one’s pocket but the Lawyers; the shot is fired for another object; if the Jury invalidate to-day their verdict of yesterday, it is unknown where litigation may end; if ever there was a bold stroke for a verdict, this is one. The Learned Gentleman said, he knew the confidence of Mr. Stephen was great, but the present is a bolder stroke than he ever before witnessed, and asked the Jury what they would think of him were he to ask them by their verdict to say - what was Libel to day was not one yesterday.

The Chief Justice - in summing up observed. - that there was no evidence to shew that the Plaintiff in this Action is the same Mr. Rose alluded to in the Libel.

Mr. Stephen - requested leave to call another witness to supply this defect in evidence -- but his Honor could not do that without the sanction of Defendant, who would not consent.

His Honor then charged the Jury, and they returned a verdict for Defendant.

We understand Mr. Stephen intends to move for new trials in both the above-mentioned cases, viz., Rose v Smith - and Rose v Wickham.

14 November 1837

Source: Cornwall Chronicle, 25 November 1837

            A rule nisi was granted in this case to show cause why there should not be a new trial on the grounds, 1st, that a verdict had been given contrary to the Judge's directions; 2nd, contrary to evidence; 3d, contrary to law.

Pedder C.J., 1 December 1837

Source: Launceston Advertiser, 14 December 1837[2]

The Chief Justice delivered his opinion in favor of the plaintiff. He thought that the plea of justification on which the Jury had found for the defendant had not been proved, and that the verdict being against the evidence and against the direction of the Judge, there ought to be a new trial. Mr. Justice Montagu thought that the jury perhaps considered the evidence of the plaintiff insufficient to obtain for him a verdict. That his conduct was full of suspicion, and that therefore although the defendant’s justification was not fully proved, yet there was sufficient to deprive him of a verdict. The Chief Justice was of opinion that unless the justification was totally proved, the defendant could not have a verdict thereon. No decision given.

Notes