Breach of Promise case - Charlotte Ewen vs William Temby

Up until 1976 a jilted party could sue their former fiancee or fiance for damages for not going ahead with the marriage. In November 1911, the following case was reported in many newspapers. It concerned 24-year-old Charlotte 'Lottie' Flavelle Ewen, formerly of Garfield and 33-year-old William Park Temby of  Iona, however his address is listed as Bunyip in the newspapers reports. Charlotte claimed £1000 in damages.

Before we look at the case we will have a look at the people involved. Charlotte Flavelle Ewen was born in 1886 to Alfred Ernest and Annie Eliza (nee Steff) Paynter. On June 17, 1908, she married Herbert John Ewen,  the son of  George William and Catherine (nee Hill) Ewen of Brunswick. At the time of her marriage, Charlotte's parents were living Mountjoy, Mount Dandenong. (1) 

Charlotte's marriage to Herbert Ewen, 1908.

The Age, July 4, 1908 https://trove.nla.gov.au/newspaper/article/197351701

The Paynters then purchased four blocks of land in the Iona Riding of the Shire of Berwick near Garfield, which they held until around 1914, when the Electoral Rolls indicate they had moved to Melbourne. (2)

Charlotte and Herbert had a daughter, Marjorie Jean in 1909; and then sadly on June 24, 1910 Herbert died at the age of 29,  which left Charlotte a widow with a little baby. (3) She then moved in with her parents at Garfield and her life there is laid out in the reports of the court case, below.

In 1914,  Charlotte married John Nichol Baird and they initially lived in Newmarket, before moving to  New South Wales, where she died at the young age of 31 on November 11, 1918. (4)

Death notice of Charlotte, 1918

Lismore Northern Star, November 18, 1918 http://nla.gov.au/nla.news-article92909310

 As for little Marjorie, it appears that she may have been raised by her grandparents, as suggested by the following death notices of her Grand-parents, Alfred and Annie Paynter -  

Death notice of Alfred Paynter, 1927.

The Argus, May 10 1927 https://trove.nla.gov.au/newspaper/article/3853527

Death notice of Annie Paynter, 1945

The Argus, May 5 1945 http://nla.gov.au/nla.news-article1099797

William Park Temby was born in New South Wales in 1878 to James Mitchell and Jane (nee Park, also called Jean) Temby. After they moved to  Creswick in Victoria, two more children were born - Mary Louisa in 1881 and a brother, James Mitchell, in 1882 who died aged 5 months on April 6, 1883. (5) Little James' death was the second blow the family faced in a few months, as on December 11, 1882 James was one of 22 miners who were killed in Creswick when the Australasia Mining Company mine was flooded.  This left Jane with two small children, and even though all the widows and orphans received weekly payments from a relief fund which was established it would never  make up for their loss (6) 

The Creswick Mine Disaster, which claimed the life of William's father in 1882.

Top: general view of the Mine. 

Bottom: Scene in the Shifting house after the recovery of the bodies.

Published in the Illustrated Australian News, December 23, 1882.

State Library of Victoria image IAN23/12/82/201

Jane, William and Mary Temby took up land in the late 1890s on the Koo Wee Rup Swamp (hence the reason William is called a village settler in the court case reports) on Fallon Road with some on the corner of Temby Road, which was named after the family. (7)  When the Temby's arrived the area was known as Bunyip South and the name changed to Iona  in August 1905. 

Temby land,  Parish of Koo Wee Rup East.  Temby land marked with stars.

  Lot 112, J. Temby, 19 acres; Lots 113 and 114a, W.P. Temby, 33 acres; Lot 141 Jane Temby, 19 acres; Lot 142, M.L. Temby 19 acres and Lot 143 W.P. Temby 19 acres.

Parish of Koo Wee Rup East, State Library of Victoria http://handle.slv.vic.gov.au/10381/104853

After William and Charlotte split up, William married Beatrice Ewen on February 18, 1914. Beatrice (nee Beattie) was the widow of Arthur James Ewen; Arthur was the brother of Charlotte's first husband, Herbert John Ewen. Herbert and Beatrice had married in 1902 and he died the next year on September 10, at the age of 25, a tragedy for the family. (8)  It's an interesting match, Beatrice was living with her parents-in-law, George and Catherine Ewen, at 120 Park Street,  Brunswick at the time of her marriage to William Temby. Did they know each other before the breach of promise case or did the Ewens reach out to William after the case? 

Marriage of William Temby to Beatrice Ewen, 

whose name is incorrectly listed as Elven, 1914.

The Argus, March 21, 1914 http://nla.gov.au/nla.news-article7240942

William and Beatrice lived on the family farm and  Beatrice died September 8, 1950, aged 75, whilst William died on August 18, 1957 aged 78. The last few years of his life he was living in Surrey Hills. (9) Did they have children? The plaque on Jane Temby's grave at Bunyip also lists -  Baby Grace Battie Temby passed away 11 March, 1919, which is their daughter, but I can't find a reference to either her birth. (10)

Death notice of William Temby, 1957

The Age, August 19, 1957,p. 11,  from newspapers.com

The Breach of Promise case, brought by Charlotte Ewen against William Temby was held in the County Court in Melbourne in November 1911. 

From The Age of November 18, 1911 (see here)
BREACH OF PROMISE CASE. YOUNG WIDOW AND FARMER. £1000 CLAIMED.

An action for breach of promise of marriage was commenced in the County Court yesterday before Judge Johnston and a jury of six. Plaintiff was Charlotte Flavelle Ewen, formerly of Garfield, but now of Horsburgh-grove, Malvern, widow, and defendant was William Park Temby, of Bunyip, farmer. Plaintiff claimed £1000 damages, included in which was £40 as special damage for the costs of trousseau.

Mr. Duffy, K.C., and Mr. Stanley Lewis (instructed by Messrs. Backhouse, Skinner and Hamilton) appeared for plaintiff; and Mr. Meagher (instructed by Mr. Davine, of Warragul) for defendant.

The formal defences were a denial of any breach of promise; that the engagement was broken by plaintiff; and, further, that it had been agreed between the parties that the marriage should be postponed for three months.

Plaintiff gave evidence that after the death of her husband she went to live with her father and mother at Garfield, in the Gippsland district, her father being a farmer there. She became acquainted with defendant, and they were engaged to be married. That was about a week before Easter of the present year. On Sunday, 30th July, she went with her father to see defendant, who was slightly ill. He lived with his mother and sister about six miles away. After afternoon tea his mother and sister left the room, saying it was time to milk the cow. Her father went on the verandah for a smoke. 

Then defendant blurted out: "Look here, I am not going to marry you, Lottie." 

She replied: "Goodness gracious, for what reason?" She called her father into the room, and, after a short explanation, he promised to come up to her father's house and give an explanation. As he did not come on the Tuesday, 1st August, she waited until 9th August, when she wrote to him. He replied in a letter in which he said that she herself broke off the engagement whilst he had only desired it should be postponed. There was no truth in that assertion.

Mr. Duffy: Did defendant ever say any thing about himself? -Yes, he told me he had £4000. Mr. Meagher: Did that attract you? Witness No.
This was a love match? - Yes. I have been a widow for twelve months, and have a child. Before I was married to my late husband I was engaged to a Mr. Chick. I broke that engagement off. I was 18 years of age then, and am 24 now.

Since Mr. Ewen's death have you been engaged to anyone else? - Yes, little over three months after my husband's death I became engaged to a Mr. Cooper, of Glenferrie. Was it "a love match" with all three of them? - Yes. I also broke off that last match. I was engaged to Mr. Cooper just before Christmas, and freed myself on New Year's Day. Were you heartbroken when you broke it off? - No, Mr. Cooper did not complain that I was too fond of walking out with other young men.
Why did you break off your engagement with him? - Well, he asked me such a lot of questions about the furniture I had that it was apparent that he was not marrying me for love, and so I gave him up.

Did your husband leave you about £100? - No, about £300. There were no debts to pay. I know a young man named Arthur Dorey. I took him out twice for a drive whilst he was staying at my father's place. I have known him since I was a child. I was never engaged to him. Does that list include all your lovers? - Yes. I was very fond of Temby; but his conduct cured me. I cannot say I hate him.

Did you ever tell anybody that you thought Temby had a lot of money, but that it turned out to be his mother's? - No.
Did you not say that you had had a narrow escape? - Certainly not. There was no suggestion by defendant that the marriage should be postponed. I should have been glad to have waited, as I did not want to be married so soon after the death of my husband. I was utterly surprised when he broke the affair off.
He didn't embrace you or kiss you at that interview? - No, he did not; we used not to spend our whole time in doing that kind of thing. (A laugh.) 

I asked him to come and see me on the following Tuesday to explain his despicable conduct. At the close, of the interview he took me by the hand and said, "Good-bye, old girl."
You wrote him an indignant letter? - I was very much upset when I wrote that letter. My indignation had been growing all the week. You said in the letter, "Knowing what I do now of you and your mother, I thank God for what I am saved from." So you are glad you did not marry him? - Yes.

Then don't you think you ought to pay us something for getting rid of a bad bargain? - Oh, dear no.
You complain of "mean, low, cunning, despicable cold cruelty" - a fine, set of adjectives? - Yes.
Again - "You are a low down lot," "mother's crying Willie." That was defendant? - It was.
"How you have deceived me and my parents" - Was that about him not having £4000? - Yes. I do not say he is a good mark for damages. I was willing to accept £500 to compromise the case. All I want is to have my character cleared. When a man gives up a woman in the way he did me, some people might infer a lot. What about when you gave the other poor fellows up? - Oh, that don't matter.
(A laugh.) I want to punish him for the way he treated me. What's sauce for the gander is sauce for the goose? - Not always. That's women's rights with a vengeance. Ought you not to be punished for giving up the other men? - No, certainly not.

You wrote that you "would be glad to get away from such a miserable crew"? - Yes; that's the man's mother, his sister and himself. I have felt thankful since that I got away from them. I think I had a narrow escape. You had a ring and a watch which were given to you? - Yes, I have them now. I did not send them back again. I think I was entitled, to keep them in the circumstances.

Alfred Paynter, father of plaintiff, stated that he visited defendant's place. The latter said there were 125 acres, worth £30 an acre. There were 75 head of cattle, and he had a good banking account. The land and cattle, he said, were all his.

Mr. Meagher, in opening the case for defendant, alluded to plaintiff as "an attractive, but business-like and dangerous young widow." In "The Pickwick Papers" the elder Weller told his son Samuel to "beware of widows." That advice remained good to the present day. No doubt defendant fell in love with this widow and proposed marriage. In the circumstances no one could blame him. Being attacked with influenza, however, he wanted the marriage postponed. Plaintiff demurred to the proposal. This was first made on the Saturday. On the Sunday the father came to defendant's house with his daughter. The marriage was ultimately only broken off by the extraordinary and abusive letter plaintiff wrote to him.

Plaintiff thought defendant was worth £4000. When she found that he had very little money and would not be much of a "catch," she was glad of an opportunity of breaking off this engagement, as she had done others.

Defendant gave evidence that he was 33 years of age, and was a village settler. He had 53 acres of leasehold land. The value was about £13 per acre. He had a little machinery and about £5 in the bank. He never told plaintiff's father that he possessed £4000. He became engaged to plaintiff. She was given a ring of the value of £20, and a watch worth £8 8/. Some alterations were made to his mother's house to fit it for the reception of his proposed wife. During June and July he had a cold, and contracted a tender throat. In consequence of this, he felt low and miserable. He spoke to plaintiff, saying - "Your first husband started with a sore throat, didn't he?" She said, "Yes." He said, "I think we had better postpone the marriage. She replied - "Oh, no, its going out at night that has given you a sore throat. When we are married you won't be running out after me." To that he (defendant) replied. "Well, I shall be glad when it's all over. " (A laugh.) 

This was on the Saturday, and on the following day plaintiff and her father came to the house. He (defendant) then suggested that the marriage be postponed for three months. Plaintiff said, "I won't put it off. I would sooner break it off." His (defendant's) mother came into the room and said, "Lottie, if you drive him into a corner I'll cut him off with a shilling." Plaintiff said, "Does your mother own this place? " He said, "Yes." She answered, "Three women cannot live here, and I won't." Plaintiff further complained about him having spoken to her about going out with Dorey. She put her head on his shoulder and he kissed her. She said she was very disappointed about what had happened. Plaintiff's father came into the room and asked him to "pray over the matter." His last words were - "Good-bye, old girl; any way, we won't get married in September," The match was not broken off - only postponed. He was still fond of her. They had had no quarrels. His mother had not been opposed to the marriage. He was dreadfully upset at receiving the abusive letter from plaintiff, and went for a trip to New South Wales.

Apart from that letter, he had always regarded plaintiff as being a really nice young woman. At this stage the further hearing was adjourned until Monday.

From The Age of November 21, 1911 (see here)

BREACH OF PROMISE. YOUNG WIDOW AND FARMER. DAMAGES ASSESSED AT £50.

[Article commences with a summary of the people involved, the legal team and a repeat of the formal defences]

The defendant gave evidence on Friday, and he was now cross-examined by Mr. Lewis. He admitted writing the following letter to plaintiff: -
Dear Miss Ewen, - I received your letter dated 9th August. You know very well I did not break off our marriage. You did yourself. I only wanted to put it off, as I was not well enough, and in no position to marry or go to the expense you wanted me to go to. After reading your letter, with its insulting remarks to my mother and family, I, too, thank God you took the course you did.
Mr. Lewis: Are the statements in that letter true? Witness: Yes, they are true. Plaintiff broke off the engagement herself. I regard her letter as being that of a vindictive woman. It was just a letter of abuse.

What is the meaning of this sentence in your letter- "I decline to go to the expense you want me to"? - Oh, she wanted things I could not give her. She also wanted a longer honeymoon than I could afford to take. I was not in a position to marry at the time. Why? - I had suffered losses because of Irish blight in the potato crop. Then, on account of my illness I was advised to go away on a holiday to New South Wales. Did you ever say that the marriage was broken off by mutual consent? - I never said that. I said that plaintiff broke it off.

Jane Temby, defendant's mother, said that on the afternoon of the quarrel she heard plaintiff say - "I will break it off, but not postpone it." Mr. Lewis: Did you part as "good friends ! Witness: Oh, yes.

Then why should she have written such a letter?- I cannot say. I was astonished. Now, was not your son frightened to see her? - No ; he would be no son of mine if he was frightened to see any woman. The fact was that he was not well enough to get married.

Annie Park (11), of Garfield, said that, in regard to the trousseau for which plaintiff was charging, plaintiff had worn one of the hats, and on the present occasion was wearing one of the dresses.

Elizabeth Flett, of Bunyip, married woman, said that plaintiff had informed her that the engagement with Temby had been broken off, because he had deceived her people about the property. She also said that she was glad that she was not going to live at the place, as she did not think that she would get on with Temby's mother. Plaintiff, during the conversation between them, said : I wouldn't have him now not if he were hanging with diamonds." (A laugh.)

His Honor, in summing up, said that up to a certain point both parties were agreed. There was no dispute about the fact that plaintiff became engaged to defendant about Easter of last year. Both sides said there was not a ripple on the water of their happiness up to July last. Before that time there was no suggestion of a breach, of a postponement of the marriage. According to plaintiff, however, on Sunday, 30th July, he informed her he was going to break off their engagement He promised he would go to plaintiff's residence on the following Tuesday to explain why, but he never went. Plaintiff then wrote a letter, about which there had been much discussion, and defendant wrote a reply. Defendant's version was that the marriage was merely postponed, and that on the Sunday all parties left on good terms. It was for the jury to judge which story was true. 

Did plaintiff break off the engagement herself in that letter, or was it merely written because a woman whose feelings had been outraged desired to tell a man what she thought of him? If the jury believed defendant's view, there would be no case made out by plaintiff, therefore no damages to award. If plaintiff's view were accepted, the jury must take into consideration what she had lost by the marriage, and give her such reasonable damages as in the circumstances they might deem fit. The jury returned a verdict for plaintiff,and assessed the damages at £50, with costs. A stay of proceedings was granted for seven days.

Footnotes:

(1) Index to Victorian Births, Deaths and Marriages; The Age, July 4, 1908, see here. 

(2) Shire of Berwick Rate Books; there are two 1914 Electoral rolls on Ancestry and they are listed at 1 Wigton Street, Ascot Vale in one and at  Alexander Avenue, Elsternwick in the other.

(3) Index to Victorian Births, Deaths and Marriages; Herbert's death notice - The Argus, June 27, 1910, see here.

(4) Index to Victorian Births, Deaths and Marriages; Electoral Rolls; Charlotte's death notice Lismore Northern Star, November 18, 1918, see here.

(5)James Temby married Jane Park on may 16, 1877 at Golden Lake (near Scarsdale. Birth of children - Index to the New South Wales and Victorian Births, Deaths and Marriages;  Death notice of little James  - Ballarat Courier, April 7, 1883, see here; Mary Louisa Temby married William Alcorn in 1912 and she died in Shepparton in 1933 aged 52. Her death notice in The Argus of August 2, 1933 (see here) lists her as the beloved wife of William and beloved mother of Jean, Beatrice and Grace, and loved sister ow Will and sister-in-law, Beatrice. Jane or Jean Temby died February 16, 1928 

Temby - Park marriage, 1877

Ballarat Courier, May 18, 1877 http://nla.gov.au/nla.news-article207821755

(6) Creswick Mine Disaster - The Argus, December 15, 1882, see here; Benalla North Eastern Ensign, December 15, 1882, see here; Creswick Museum https://www.creswickmuseum.org.au/exhibitions/the-mining-room/australasian-mining-disaster/ 

(7) The Shire of Berwick Rate books don't show the exact year they took up the land; sometimes the Koo Wee Rup Swamp allotments took a few years to appear in the Rate books, however they do appear in the 1899/1900 book, which was the year William turned 21, so this may actually have been the date of their arrival.

(8) William and Beatrice marriage The Argus, March 21, 1914, see here; Arthur's death notice The Argus, September 11, 1903, see here.

(9) Beatrice death notice The Argus, September 11, 1950, see here; William death notice The Age, August 19, 1957. 

(10) Baby Grace Beattie Temby - I can't find a reference to either her birth or death in the Index to Victorian Births, Deaths and Marriages.

Temby plaque at  Bunyip Cemetery 

http://www.ozgenonline.com/%7Ekayemac/images/917bun.JPG

(11) Witness Annie Park was the wife of George Park, a blacksmith of Garfield. Jane had a brother George, as you can see from her death notice below, so this was possibly him.

Jane Temby's death notice, 1928

The Argus February 15, 1928 https://trove.nla.gov.au/newspaper/article/3910831/462183

Pub crawl in 1918 leads to licensing prosecutions at the Bunyip Police Court

The Bunyip and Garfield Express of October 4, 1918 had this following interesting account of a pub crawl by four lads -  Frederick Sippo, Hugh Murdoch, Stephen  McMillan (spelt as M'Millan in the article) and George Schmutter which saw the licensees of three hotels end up in the Bunyip Police Court on licensing charges. 

Bunyip Police Court. Wednesday, Oct 2, 1918.

Before Messrs Tanner, P.M., and a’Beckett and Barker, J.’sP.

Licensing Prosecutions

Inspector M’Loughlin proceeded against Edward Augustus Dreier, licensee of the Iona Hotel, Garfield, for serving 3 persons, apparently under the age of 18 years, with liquour, on 3rd August last.
Mr Davine, for Mr Dunn who was ill and unable to be present, appeared for the defendant, who pleaded not guilty.
Permission was given to the inspector to amend the summons, as it was since found that one of the persons supplied was over 18 years.
Frederick Sippo, said on the day in question he went to the hotel at Garfield, where he had a few shandies; the drinks were supplied by Mrs Dreier, who never asked anything about his age; he was born on 10th Nov, 1901, and knew the difference between a soft drink and beer, as he had drank beer before.
In reply to Mr Davine witness said he told defendant prior to that date he was over 18.
Hugh Murdoch, aged 16, said a lady whom he did not know served them, and he had never previously told Drier he was over 18.
Stephen M’Millan, aged 18, also gave evidence as to being served, and that Dreier made a practice of keeping boys out of his hotel.
The defendant, who was away in the city on this day, said he always made it a practice of inquiring about young fellows ages, and had asked them to leave the billiard room if not 18. Mrs Dreier was in charge while he was away but he could not say if he asked their ages in the presence of his wife, but the three youths had previously told him they were over 18.
The Bench said the information would be dismissed, as defendant had evidently put his foot down on this matter by taking every precaution.

A similar charge was preferred against Henry Wilson, licensee of the Gippsland Hotel, Bunyip, for serving a person under 18 years of age on the same date.
The youth Sippo said he went into the hotel in company with G. Schmutter, who called for two drinks; he had a shandy, but had never had drink there before.
To Mr Davine (for Mr Dunn) – he was standing near the window in the bar parlor, so that the licensee did not have a full view of him; he knew now that Mr Wilson would not supply anyone under 18, and heard him refuse to serve Murdoch and M’Millan.
George Schmutter said he called for 2 drinks and Sippo had a shandy; Sippo would not be visible to the licensee when he served the drinks.
Without calling any evidence for the defense, the case was dismissed.

Inspector M’Loughlin v Thos. Stacey a similar charge to the previous one.
Mr Backhouse for the defendant.
Sippo again said he went into the bar with Schmutter and had a shandy, but he wouldn’t contradict Tom Stacy if he swore he refused to serve them.
G. Schmutter said he did not suppose Tom knew who he was getting the drinks for as there were several about; he remembered going to the side window for a bottle of wine.
Mr Backhouse said the licensee, who had never had a charge brought against him for over 20 years, had no knowledge that the lad Sippo had been served with liquour.
Thos Stacey, jun. said he refused drinks to a crowd and never at any time did he serve Sippo with drink; he only supplied Schmutter with a bottle of wine.
The licensee and R. M’Namara gave evidence that they were playing cards in the room behind the bar, and heard the previous witness refuse to serve them.
The Bench said they were satisfied that the youth had not been served, and dismissed the information.

In a Koo Wee Rup Sun article of this case it concluded with a pun. They reported that as Frederick Sippo was involved in all cases he was the youth who should not be allowed to sip drinks in a hotel (1).

I have written about the Iona Hotel at Garfield here and the Gippsland and Railway Hotels at Bunyip, here. 

.................................................................................

Who were these boys?

Frederick Sippo. Frederick, born November 10, 1901 at Bunyip South, as Iona was then called, and was the son of Simon and Olive (nee Warren) Sippo. Listed in the Electoral roll at Iona, Simon was a contractor and bridge builder. 

Simon Sippo bridge building in a flood

The Age June 21, 1911, http://nla.gov.au/nla.news-article196202311

Olive died April 11,  1929, at the age of 65,  and her death notice lists their children as Winifred, John (Jack), Ollie, Annie, Leslie, Charlie, Joe, Fred, Alfred and Ernie. The family were then living in Seddon, and she is buried at the Footscray Cemetery along with Simon, who died a few weeks later at the age of 68. Also in the grave is Frederick, who died at the Melbourne Hospital at only 32 years of age on September 3, 1934. (2).

Death notice of Frederick Sippo

The Age September 4, 1934 http://nla.gov.au/nla.news-article205889071

Hugh Murdoch. Hugh James Murdoch was born in 1902 in Balranald, NSW to George Petrie Murdoch and Emma Rose Parker, who had married in Balranald in 1897. Hugh was the brother to Arthur, Mary, Allan, Lily, Stanley, Archibald and Alice.  George opened the Cora Lynn General Store in 1907 and operated it until 1922, and had also opened the Bayles General Store in 1921. You can read about the Cora Lynn store, here and the Bayles store, here.  Hugh followed in the family trade as he is listed in the Electoral rolls as a shop assistant at Narre Warren, and later as a farmer, also at Narre Warren.  Hugh married Elizabeth McMillan in 1924 and died August 16, 1994, aged 92. Elizabeth died in 1985 aged 82 and they are buried at the Bunyip Cemetery. (3)

The death notice of Hugh's wife, Elizabeth.

The Age June 19, 1985, p. 31 newspapers.com

Stephen McMillan. Stephen was the brother of Elizabeth, Hugh Murdoch's wife. They were the children of Robert James and Bridget (nee Guthrie) McMillan. The births of Stephen and Elizabeth were registered in Dean in 1900 and 1903 and the Electoral rolls list them at Bullarook, near Ballarat. They later moved to a farm at Garfield. Bridget died in 1935 aged 70 and Robert in 1932, aged 68 and they are buried at the Bunyip Cemetery. Stephen married Sophia Joyce Baxter in 1922 and are listed in the Electoral Roll on farms at Cora Lynn and then Koo Wee Rup Road, Pakenham.

On June 4, 1941 Stephen enlisted in the Australian Army (SN VX57181). He said his birthday was December 26, 1902, so it seems he took three years off his age, and given that most men who lied about their age kept the actual day and month, he was most likely born December 26, 1899.  He served in the Middle East, but was discharged January 4, 1943 on medical grounds. Stephen died in Frankston in 1960, aged 60 and he is buried at Frankston Cemetery. Sophia died in 1987 in Mount Martha aged 87. (4)

Death notice of Stephen McMillan

The Age, July 26, 1960, p 16. newspapers.com

George Schmutter. George was born at Bunyip South (Iona) in 1895, the son of William and Mary Ann (nee Hannington) Schmutter. This makes him about 23 when the pub crawl took place. However,  the 1919 death notice of Mary Ann and the 1932 death notice of William both list their children as Henry, William, Agnes, Florence and Jack, with no mention of  a George. There is  a George Schmutter listed in the Electoral Rolls from 1916, the year George would have turned 21, with the occupation of labourer and address Iona, so that is likely to be him. George Schmutter married Ella May Chadwick in 1925 and they are in the Electoral Roll at Iona or Vervale up to at least 1949 and from the 1954 Roll they are living in Parramatta in New South Wales, where his occupation is a gardener. George died in South Melbourne in 1963, aged 68, and Ella died in Parramatta in 1977. I was unsure whether this fitted together, then I found Ella's death notice in the Sydney Morning Herald and George is called Jack, so that pulls all the pieces together, and confirms that George is the Jack listed in his parent's death notices. Then as double confirmation, Find a Grave has a photo of their memorials at the Rookwood General Cemetery in Sydney, and they have his name listed as George John Schmutter, hence the diminutive, Jack. (5).

Death notice of Ella Schmutter

Sydney Morning Herald, September 30, 1977 p.19. newspapers.com

George and Ella Schmutter's memorials at Rookwood Cemetery in Sydney

https://www.findagrave.com/memorial/189592770/ella-may-schmutter

There is one remaining mystery with George/Jack. As you can see from his father's death notice, below, it states that he (Jack) was late A.I.F - a  returned soldier. However, I cannot find any reference to him enlisting. To add to this mystery, the Iona Honour Board, lists a W. Schmutter, who I can't firmly identify, but I have written about this  here.

William Schmutter's death notice 

The Age, March 24, 1932, https://trove.nla.gov.au/newspaper/article/205096553

Footnotes

(1) The Koo Wee Rup Sun, October 9, 1918, see here.

(2) Indexes to the Victorian Births, Deaths and Marriages; Electoral Rolls on Ancestry.com; Olive Sippo's death notice The Age, April 13, 1929, see here;

Footscray Cemetery records   https://www.gmct.com.au/our-locations/footscray-cemetery

(3) Indexes to the Victorian and the New South Wales Births, Deaths and Marriages, Electoral Rolls on Ancestry.com; 

Bunyip Cemetery records   http://www.ozgenonline.com/~kayemac/bunyip.htm

(4)  Indexes to the Victorian Births, Deaths and Marriages, Electoral Rolls on Ancestry.com; 

Bunyip Cemetery records   http://www.ozgenonline.com/~kayemac/bunyip.htm; 

National Archives of Australia Second Australian Imperial Force Personnel Dossiers, 1939-1947 - read Stephen's file here   https://recordsearch.naa.gov.au/SearchNRetrieve/Interface/ViewImage.aspx?B=6123791; funeral notice The Age, July 26, 1960, p 16. newspapers.com

(5) Indexes to the Victorian Births, Deaths and Marriages;  Mary Schmutter's death notice The Age March 15, 1919, see here;  William Schmutter's death notice The Age, March 24, 1932, see here; Electoral Rolls on Ancestry.com

Court cases between Sarah Hansen and Thomas Stacey of Bunyip.

On December 6, 1889 Thomas Stacey took over the Railway Hotel at Bunyip from  Sarah Hansen, even though she still retained ownership of the property. It was a unhappy relationship as in the next five years they were involved in multiple legal cases with each other.  

The Railway Hotel, Bunyip, c. 1905 - the source of the contention 

between Mrs Hansen and Mr Stacey.

Museums Victoria https://collections.museumsvictoria.com.au/items/795791

The Railway Hotel was started in the late 1870s by William Hobson who married Sarah (nee McKernon) in March 1879. After William died, Sarah continued to operate the Hotel on her own. She married Christian Hansen in 1885. She sold the business (but not the property) to Thomas Stacey in 1889. He operated the Hotel until his death in January 1928 at the age of 77. Sarah  died in October 1913, aged 73. Sarah had four children to William Dethmore before she married William Hobson. Her daughter Christina Dethmore is involved in two of the cases. I have more details on the hotel and the family here.

Here are some newspaper reports about these legal cases between Sarah Hansen and Thomas Stacey.

From the Warragul Guardian, August 12, 1892 (see here)

Warragul County Court, 

Wednesday, 10th August, 1892

(Before His Honor Judge Worthington)

Libel Action -Damages £3. 

Thomas Stacey, hotelkeeper, Bunyip v. Sarah Hansen, claim for £49 for alleged libel contained in a letter addressed by defendant to Sergeant. Hillard, of Warragul. Mr. James Gray appeared for the complainant, and Mr. D. Wilkie defended. The alleged libel was contained in a letter from the defendant to Sergeant Hillard as follows:-
" Dear Sir--I must call your attention to Stacey's hotel, at Bunyip, last Tuesday week. There were two drunken men in and out the place during Tuesday. The night before last and last night we could not sleep for noise there all night. I hear there is going to be a dance there to-night. There seems to be an open house there day and night. I have got the Church of England minister staying with me, and I think it is time their conduct was seen into, as there are drunken women and men singing all night. I think it would be wise to send some one in plain clothes. By doing so you will oblige, as it is my property, and I must have it seen to."

Mr. Gray submitted that the language was too strong to be privileged. The relations between the parties had been strained for some time. The defendant lived 200 yards from the plaintiff's hotel, and the allegations in the letter were perfectly foundationless. 

Mr. Wilkie pointed out that he had received two summonses (Nos. 93 and 94), and as the former had not been filed, he was at a loss to know on which the complainant was proceeding. He contended the letter was a privileged communication, that it was written without malice, and in the public interest. The point raised by Mr. Wilkie respecting the two summonses was argued at length, and was finally overruled, his honor merely asking down the grounds of Mr. Wilkie's objection - two summonses had been served in the case, No. 93 was served some days previous to No. 94. That at the time No. 94 was served no notice of discontinuance had been given in the action, and that therefore the second summons (No. 94) was invalid, and on that ground he applied to have the summons set aside and struck out.

Robert Hillard, sergeant of police, stationed at Warragul, was then called. Mr. Gray,: Do you produce any document? Mr. Wilkie: I thought that any communication sent to witness was privileged. His Honor allowed the question with the understanding that the witness could consider it privileged if he chose. Witness (continuing): Had had notice to produce a letter. Did not feel he could very well object to produce the letter (letter put in.) On receipt of the letter he sent it to Constable Trainor, of Longwarry. Mrs. Hansen had called at his (witness') office. She said that her daughter had written the letter for her, and that she had not written it, or words to that effect.

Constable Trainor enquired into the complaints contained in the letter. To Mr. Wilkie: It was not the practice for the police to disclose the name of an informer. It would be an improper thing for a constable to show the letter to anyone. It was confidential. Constable Trainor went on the evening of the 3rd July. Anthony Joseph Trainor, stationed at Longwarry, said that on receipt of the letter from Sergeant Hillard he went to Bunyip to make enquiries.

Mr. Wilkie submitted that the witness should not state the result of his enquiries. Mr. Gray: If there was no foundation for the expressions in the letter, and they were proved to be groundless then the expressions were libellous. Mr. Gray (to witness): What was the result of your enquiries? Mr. Wilkie: I object. His Honor upheld the objection. 

Witness (continuing) said: I saw Mrs. Hansen on the 3rd of July. Went the same evening that he received the letter. Mr. Wilkie again objected, contending that the conversation between the defendant and witness had no right to be disclosed, otherwise people would be afraid to complain to the police. His Honor held that the evidence was permissible. Witness said that when he called upon the defendant she said that the contents of the letter were quite true. There had been two drunken men in knocking about on the Sunday in and out of the hotel, and that she saw Stacey pushing them about. He witness) asked who they were. She replied, "Two men in the employ of Stacey. Their conduct was very bad, singing at all hours of the night. There were drunken women too. She heard them singing going home at night in a dray, and thought one of the women was a boarder at the hotel, or she only heard so. The minister complained about the noise during the night; it was time it was put a stop to"

He (witness) said- "why did you not tell me ?" She replied that a stranger would be best, I was too well known. Defendant's husband came in and said he had not noticed any misconduct at the hotel, and asked who had been reporting it? Witness replied "Mrs. Hanson has been reporting it. He replied, "She has no right to complain or write letters, it had nothing to do with her." The defendant had made previous complaints. He (witness) said, " It is strange you are always making complaints about the hotel. I cannot find anyone else in the township that sees anything wrong. You must have some motive in saying so." Defendant replied, " Yes, I have a motive. The place is not half insured; it is my property. They promised to insure for £400 when they took it from me, and have not done so. If is only insured for £200, and they might burn it down any time."

To Mr. Wilkie: Knew the rule in the police force, and that they should not reveal an informants name. He did not reveal the name, and did not show the letter to anyone. Could not say how Mr. Gray got the letter. Never saw it after sending it back to Sergeant Hillard. Told Stacey there was a complaint about his hotel, and who had complained, and what the complaints were. He had no reason to complain about the hotel. Heard Stacey had been fined for Sunday trading. Was not annoyed about the letter himself.  Never told Stacey that the words were actionable. Mrs. Hansen did not say she did not want to make a charge.

Thomas Stacey, the plaintiff, was licensee of a hotel at Bunyip. Had purchased the place from Mrs. Hansen two years ago, and been in the premises ever since. Heard about the letter. There was not one truth in the statements made by Mrs. Hansen. Had been on bad terms from two months after he took possession of the house. On one occasion had put a man out of the hotel. She said that he (witness) had insulted her and summoned him at the Drouin Court, when the case was dismissed with costs.

To Mr. Wilkie: Did not now where Mr. Gray got the letter from. He had bought the hotel. Did not pay any money down. Mrs. Hansen lent him money. Had executed a mortgage to Mrs Hansen and was a tenant of hers in the meantime. Had agreed to rebuild the premises at an outlay of £450. Did not as a rule serve people on a Sunday. Admitted that a woman was dressed in men's clothes at the hotel and singing. To Mr. Gray: From what Constable Trainor had told him he came to see Mr. Gray. There were no drunken women on the place.

David Evans, storekeeper in Bunyip, said he did not hear any noise about the date mentioned. Knew that Mrs. Hansen disapproved of the way the house was conducted, but could not remember what she had said. Harold Nixon, Church of England minister as Bunyip. Remembered living at Mrs. Hansen's at the beginning of July. Never complained to Mrs. Hansen about Stacey's hotel. Did not remember any noise. It was not true that he complained about a noise to Mrs. Hansen. To Mr. Wilkie: Had said on coming down to breakfast one morning " what was that noise in the street last night."

George Farrow, selector, lived five or six chains from the hotel. Never complained about the hotel. Did not take any notice what Mrs. Hansen had said to him. Did not expect to be brought up as a witness. No one spoke to him about this case. Had heard Mrs. Hansen say that Stacey would be out of the place in three months, and that she could not see what kept him there, but she did not say that she would hunt him out. He had said that Mrs. Hansen was worth leaving alone. He did not want to be mixed up in a neighbor's quarrel. Never spoke to Mrs. Hansen about this case.

This concluded the base for the plaintiff. Mr. Wilkie submitted that there was no case. No proof had been adduced that Mrs. Hansen had written the letter containing the alleged libel. He contended that the letter did not contain any allegation of a breach of the Licensing Act, it was a general complaint, and it was hard to see how plaintiffs business or credit could be affected. His own evidence had shown that names of informants should not be disclosed to the public; and it was well known that defendant had an interest in the property and had a right to complain. There was no evidence of malice, or of a vindictive motive, and on the other hand plaintiff had been allowed absurdly easy terms to pay for the property. And a complaint made to an officer of police of alleged misconduct should be treated as privileged. Sergeant Hillard had said that the letter should not have been shown to any one.

At this stage the court adjourned for lunch, on resuming - His Honor: said that there was not a case for a jury, but he held that some of the evidence went to show that defendant desired to get complainant out of the hotel. He would therefore hear the defence.

Mr. Wilkie was at some loss what to answer. According to his view there was actually no evidence of a libel.His Honor thought there was, and he therefore asked for the defence. Mr. Wilkie contended that it His Honor held that malice had been proved, his evidence could not alter that belief.

Christina Detmore, daughter of the defendant, said she wrote the letter. The letter was written on July 1st. The night before she heard noises at the hotel, principally singing. Knew that it came from Stacey's hotel. The Rev. Mr.Nixon said on that morning that he had heard noises in the night. Her mother told her to send a note to Mr. Hilliard about the noise the night before: Wrote the letter about 9.30 on Saturday morning. Her mother did not tell her what to write, nor did she see what was, written or was aware of the contents, as the letter was written hurriedly. Previous to this time she had seen drunken men about the place, and had heard singing at night.

To Mr. Gray:- Wrote a good many of her mother's letters but not all. Was quite positive that she did not tell her mother what was in the letter until afterwards. Hardly remembered the contents of the letter until she saw it in the summons. There were no houses between their's and Stacey's. Never told anyone that they had a few pounds as well as Stacey and would fight him. She wrote the letter without her mother knowing anything about it. To Mr. Wilkie: She told her mother about a portion of the letter.

Sarah Hansen, the defendant, said she remembered the 1st July. Heard a noise that night after 12. It came from Stacey's. Her daughter's evidence was correct. She told her daughter to write to Sergeant Hillard, as she could not rest at night. She did not know what had been written until she got the summons. Had sold the place to Stacey, but could get no satisfaction. She was always insulted. When asked to insure the place he treated her in a most vulgar manner. Had told Constable Trainor that the place was not insured and therefore was in danger. To Mr. Gray: This was not the first libel action she had been concerned in. Her daughter only told her a portion of the letter. Was sent to trial for perjury on one occasion. To Mr Wilkie: The charge of perjury was dismissed.

In closing the case for the defence Mr.Wilkie remarked that he must repeat what he had previously stated - that there was no case - and held that the mother could not be held responsible for what her daughter had written. His Honor had admitted that the communication was a privileged one, therefore the plaintiff must prove a strong case in order to secure a verdict. It had not been shown how the letter had been made public. Sergeant Hillard had stated that it should have been confidential, and Constable Trainor denied showing it to anyone. Mr. Gray contended that if Mrs. Hansen said she did not know what was written in the letter she told a lie, as she must have been aware of the contents. The letter was full of innuendos of a libelous nature. The statements had been made broadcast, and there was no attempt to deny them.

His Honor held that the letter was defamatory, but that it was privileged being addressed to the police. The complainant was a debtor and did not keep his covenants; but the defendant had not gone the right way about. He gave a verdict for £3, costs to be taxed.

Warragul Court House, where Sarah Hansen and Thomas Stacey 

conducted some of their legal battles.

Warragul Court House, Smith St. Photographer: John T. Collins. Photo taken March 8, 1971.

State Library of Victoria Image H98.251/2439

From the Narracan Shire Advocate, November 26, 1892, see here.

    

Slandering a young woman.

Claim for  £250 Damages

She recovers £60.

Action at Warragul.

At the adjourned sitting of the Warragul County Court on Friday, before His Honor Judge Hamilton, a young unmarried woman of ladylike appearance, about 22 years of age, named Christina Dethmore, brought an action to recover, a sum ot £250 from Thomas and Ann Stacey, hotelkeepers at Bunyip, for alleged slander, based on the circulation of the report that the plaintiff had had two children. Mr. Johnston (instructed by Mr. Wilkie) appeared for plaintiff, and Mr. Lyons (of the firm of Lyons and

Turner) defended.

Mr. Johnston, in opening the case said the action was being brought for slander uttered by one of the defendants - Mrs. Stacey, wife of Thomas Stacey, hotelkeeper, Bunyip. The plaintiff, Miss Dethmore, was the daughter of Mrs. Hansen, her step-father being Mr. Hansen, Mrs. Hansen's second husband. The Hansens were also hotelkeepers up to three years ago, when they sold their hotel at the Bunyip to the Staceys - the defendants in the case. Ill-feeling arose subsequently between the Hansens and the Staceys, and Mrs. Stacey had chosen to vent her spite on the daughter - Miss Dethmore - by circulating the baseless slanders which were the subject matter in the case. He did not know what the defence would be - no defence of justification, at any rate, had been filed, and he would therefore ask His Honor to call on defendant's counsel for the defence. Mr. Lyons said the defence was one of not guilty - that the defendants did not utter the slander, and that there was no publication.

Esther Johnson, unmarried woman, engaged in the service of Mr. and Mrs. Stacey in August last, was then called and said: She left their employ after being there a month. The same day as she entered their service Mrs. Stacey said that the plaintiff was the mother of two children. She also said the Hansens were bad people and advised witness not to have anything to do with them. At this time witness knew nothing of the plaintiff or the Hansen family she subsequently repeated the allegations on several occasions. On one of these occasions Mrs. Stacey and witness were standing on the verandah of the hotel when the plaintiff passed and Mrs. Stacey remarked, "You would never think to look at her that she was the mother of three kids" Witness left Mrs. Stacey's employ shortly afterwards.

Cross-examined by Mr. Lyons: Mrs. Stacey had always treated witness well. She had never previously ever heard anything of the Hansens or the plaintiff. Witness did not tell Mr. Stacey at Longwarry  station, that she was dragged into the case and wished she was out of it.

Annie Roberts, married woman, said her husband carried on a bakery business at Bloomfield. She knew Mrs. Stacey and was on one occasion standing on the verandah of the Hotel with her when Miss Dethmore passed. Witness remarked to Mrs. Stacey that Miss Dethmore was rather proud and Mrs. Stacey replied that she had nothing to be proud of and that she had had a child which her mother was keeping.  Cross-examined: Witness was still on friendly terms with Mrs. Stacey. 

Amy Roberts, daughter of the last witness, said she was in Mrs. Stacey's employ within the past 12 months. Mrs. Stacey told witness that Miss Dethmore had had two children and that her mother was keeping them in Melbourne. Annie Cain, married woman, not at present living with her husband, said she was at Mrs. Stacey's hotel on the 10th of June last and stayed there one night. Mrs Stacey asked witness if she knew Mrs. Hansen and witness answered "No" Mrs. Stacey then said that Mrs. Hansen's daughter was the mother of two children and that one of them was in Melbourne and that when Mrs. Hansen went to Melbourne she frequently went to see the child.

Plaintiff was then called and said she was engaged to be married. She first heard of the slanders on or about the 6th of August. Cross-examined by Mr. Lyons: The first witness heard of the slanders was from Mrs. Cain who said "I have heard about all the kids you have had and what you did with them." This was the case for the plaintiff.

Mr. Lyons then opened the defence briefly and called the defendant, Mrs. Stacey, who said that she advised Esther Johnson not to have anything to do with the Hansen family as they were not on friendly terms. She did not say that plaintiff was the mother of two children but that she had heard that she had had a child. Witness did not remember mentioning anything in the matter to Amy Roberts, and did not have the conversation alleged with Mrs. Cain. 

Cross-examined by Mr. Johnston. Witness's husband in July brought an action for slander against Mrs. Hansen and won the case. Mr Johnston: Who was your solicitor in the action? Defendant: Mr. Gray. Mr. Johnston: Just so - that is quite enough to account for you winning the case.

Mr. Lyons then addressed his Honor and agreed that whatever might have been said by Mrs. Stacey to the witnesses who were at that time in her employ, was privileged, and was said as a warning out of regard of their moral welfare. The same might be said in regard to Mrs Roberts, who was spoken to by Mrs. Stacey, as she was the mother of the girl in her employ and was entitled to know it. The whole affair was only tittle tattle among neighbours and consequently was not a case in which heavy damages should be given. There was no evidence whatever against the husband, he had done nothing whatever to circulate the report, and therefore it would be hard, make him liable in any serious degree. The plaintiff had not been in any way ignored in the eyes of her friends or neighbors and having regard to all the circumstances of the case very small damages would suffice to rehabilitate the character of the plaintiff.

Mr. Johnston said he could not find any mitigating circumstance in the conduct of the defence. He ridiculed Mrs. Stacey's professed concern for the moral welfare of the servants in her employ and asked for substantial damages.

His Honor said that in his opinion the slander was a false and foul calumny on the reputation of the plaintiff and that she was entitled to such damages as would show that the court considered she had been grossly wronged. He, however, was not disposed to give exorbitant damages because it might mean ruin to the husband who, although legally responsible for his wife's torts, had done nothing to spread the reports. A verdict would therefore he given for the plaintiff with £60 damages and costs.

Gooddy's of Grattan Street. A bill from Gooddy's was the cause of a legal case between Sarah Hansen and George Stacey (see below)

Green Ginger Wine bottle label, 1873. State Library of Victoria http://handle.slv.vic.gov.au/10381/54322

From the Narracan Shire Advocate, May 6 1893, see here.

Peculiar Perjury Case 

A considerable amount of public interest was manifested in a case heard at the Warragul Police Court before Messrs. D. Connor and P. J. Smith, Js.P., on Tuesday, when Sarah Hansen preferred a charge of wilful and corrupt perjury against George Stacey. The proceedings arose out of an action heard at the Warragul County Court in November last, when Mrs. Hansen sought to recover a sum of money from Stacey for certain empty bottles and cases which he was alleged to have neglected to return to L. Gooddy and Co., aerated water manufacturers, Melbourne according to agreement, and with which she was consequently charged, as the order for the stuff was sent through her as the owner of the Railway Hotel Bunyip, of which Stacey was the licensee. The evidence on that occasion was very conflicting, and the judge dismissed the case.

Mrs. Hansen subsequently determined to proceed against Stacey for perjury and on the 20th of April last swore an information in which she alleged that Stacey committed wilful and corrupt perjury by stating that "he never received from the said Sarah Hansen any cases, lemonade, or ginger ale, except 5 or 6 dozen mixed cordials, lemonade and squash." Mr. Gray, at very short notice, appeared for Mrs. Hansen, and Mr. S. Lyons (Melbourne) defended. 

Mr. Gray gave a lucid explanation of the informants case, as set forth in the following evidence, and then called Mrs. Hansen, who said: I am the wife of Christian Hansen, residing at Bunyip. I recollect the 6th December, 1889, on which date Stacey purchased my business and took over my house - the Railway Hotel, Bunyip. He took over the portion that was left of the stock. Some time prior to this -about a fortnight or three weeks - he asked me to get him a supply of lemonade and ginger ale and other cordials. I promised to do so, and did so. The order was complied with and tbe things were delivered at the house two days after he took possession. About 8 or 9 months after this - when he paid me for the things - I asked him if he had sent back the empty bottles and cases to the firm I got them from, and he said "Yes" 

An account of all the goods he received was drawn up and sent to Stacey. I asked him for the receipt of all the empties that had been returned to Gooddy. He said "I have the receipt in the house and will give it to you when I find it" I had at this time paid the account for the lemonade and other drinks to Gooddy and Co - the amount being £3 2s. This was the stuff which was delivered to Stacey, and it was in reference to this account that Stacey said he had returned the empty bottles and cases in which the

stuff was sent. The items contained in the book (produced) were read over to Stacey and were agreed to by him except one or two items. He wanted to take out the item for £3 2s. from among the other items and asked for a separate account for it. I said "I will not have my books interfered with and refused."

He then paid me the whole of his account, including the £3 2s. About 12 months after I told Stacey he had deceived me as he had not returned the empty bottles and cases to Gooddy and Co. I told him I had received a notice from the firm in the matter and he told me I could go and do the best I could. I was compelled to pay for the empties myself, prior to which I had received a County Court summons from Gooddy and Co., and on telling Stacey this he said, "Hook it and do the best you can" I then paid the amount claimed by Gooddy, and costs. Subsequent to this I made a demand for the amount from Stacey, and he refused to pay. 

I then sued him in the Warragul County Court. I gave evidence when the case was heard at the County Court, and Stacey gave evidence too. He said that he had never had the empty bottles and cases referred to. He said he had had nothing but 5 or 6 dozen of mixed cordials and squash, and that he had never received the bottles and cases she sued him for. 

After some corroborative evidence had been given, Mr. Lyons called the defendant, who said: I am a publican at Bunyip, and was defendant in the case, Hansen v. Stacey, on the 17th of November. I remember Mrs. Hansen's bill being shown to me. I never swore I had never received any goods from Gooddy through Mrs. Hansen. I did not say I had never received 22 dozen of aerated waters from Mrs. Hansen. I said I had got some stuff through Mrs. Hansen from Gooddy, but that I could not remember the quantity. I then produced the bill, and showed where I had paid for the stuff. The contents of the bill of the staff received by me from Gooddy was not read over to me. I cannot read. When I said I only received 4 or 5 dozen of stuff I referred to the aerated water I had taken over from Mrs. Hansen when taking possession. Gooddy's stuff came in afterwards. When I paid the account to Mrs. Hansen I understood I had paid Gooddy's bill, as that was one of the items in Mrs. Hansen's account.

Cross-examined by Mr. Gray: When settling up with Mrs. Hansen the items were read over to me by Mrs. Shields. After I took possession of the hotel I received some stuff from Gooddy, but could not say the quantity. It was a good lot, and I thought I had paid for it in the bill I settled with Mrs. Hansen. I don't remember Mrs. Hansen coming to me in reference to the demand for the return of the empties. I returned the empties to Gooddy. I never told Mrs. Hansen that I would produce a receipt for the empties. I did not send the empties back myself. I told my man to do so, but I don't remember whether he did so.

At this stage the Bench intimated that they intended to dismiss the case. The charge was a very serious one, and they did not consider that there was sufficient corroboration to justify them in arriving at the conclusion that a prima facie case had been made out.

The Supreme Court in Melbourne, where Thomas Stacey took action 

against Sarah Hansen in December 1894.

Law courts, Melbourne, c. 1888-1890. Stata Library of Victoria Image H7942

From The Argus, December 11 1894, see here

Action under a Mortgage.

Exercise of power of sale

In the Supreme Court yesterday, Mr. Justice A'Beckett decided on action brought by Thomas Stacey against Sarah Hansen, to restrain the defendant from exercising the power of sale contained in a mortgage deed. Mr Mitchell, instructed by Messrs Lyons and Turner, appeared for the plaintiff, and Mr Bryant, instructed by Mr J. E. Dixon, for the defendant. 

The plaintiff by his statement of claim stated that in October, 1889, he possessed certain property in the parish of Bunyip, county of Mornington, and in Collingwood, and mortgaged it to the defendant to secure the repayment of £725 and interest. He covenanted in the mortgage deed to insure against fire in the name of the mortgagee, but no amount was specified. There was no express covenant for repairs. It was provided that the plaintiff should be entitled to continue the security for a further term of five years upon giving certain notices. The plaintiff did insure against fire in the name of the mortgagee, and kept the buildings and improvements in repair, and made no default in payment of principal or interest.

In February, 1894, he gave notice to the defendant of his desire to continue the security for the further term of five years, but the defendant refused to do so, on the ground that there had been breaches of covenants to insure and repair, and she notified that unless the principal and interest were paid within a month she would at once proceed to exercise her power of sale. The plaintiff asked for an injunction to restrain the sale, and a declaration that he had not disentitled himself to the extension of  the mortgage. The defence was that by a memorandum of agreement contemporaneous with the mortgage the plaintiff agreed to rebuild a certain hotel which had been burnt down, and to insure the new building for £450, and also the buildings on the other land for their full insurable value. The plaintiff, it was alleged, failed to effect the insurance for £450, or to keep the buildings in proper repair, and was disentitled from obtaining a renewal of the mortgage.

Mr Justice A'Beckett held that there had been no breach of the covenant to repair, but that there had been a breach of the covenant to insure to the full insurable value. The agreement to insure the hotel for £450, however could not be construed as a covenant under the mortgage, and the plaintiff was never properly called upon to perform the covenant to insure contained in the mortgage. Then the defendant had failed in the notice which she gave of her intention to exercise the power of sale, to state which covenant was said to have been broken, and the question arose whether this was rendered the notice bad. His Honour considered that it did. 

Where the covenants were numerous it was quite possible for the mortgagor unconsciously to overlook one of them, and it seemed a reasonable interpretation to put upon the act that where a mortgagee was about to take such an extreme measure as to sell for the non-observance of a covenant, and where the mortgagor might avoid the consequences of that breach by remedying it within a month, the mortgagee was bound to state precisely the covenant which he alleged to have been broken. Judgment would therefore be entered for the plaintiff, with costs.

Bunyip Magistrates Court

The establishment of the Court of Petty Sessions at Bunyip was ‘gazetted’ in the State Government Gazette in an announcement dated February 14, 1905. (1) The first court session took place in Kraft’s Hall which was a privately owned hall operated by William Kraft, of the Gippsland Hotel. The Mechanics' Institute Hall opened on June 15, 1906, on the site of Kraft's Hall, Mr Kraft having donated the land. This 1906 building burnt down March 14, 1940 and the existing hall opened October 8, 1942. (2) 

The Court at Bunyip is established.

 Victoria Government Gazette, February 22, 1905, p. 834.

 https://gazette.slv.vic.gov.au/images/1905/V/general/24.pdf

The first sitting of the Bunyip Court was held on Wednesday, March 15, 1905.  The South Bourke and Mornington Journal reported - 

As reported in my last, a court of petty sessions was held in Kraft's Hall on Wednesday, March 15. Naturally, being the first, some little speechifying was looked forward to, which however did not come off. Mr. Cresswell, P. M.,(3) and Messrs. Ramage and a'Beckett. J's.P., occupied the bench. Only two cases were listed. Myrtle Morris was charged by Constable J. Ryan with having no visible means of support, and was remanded to Prahran for further hearing.

John Mannix, aged twelve, was charged with endangering the property of R.McAllister by setting fire to some scrub whereby a quantity of grass and fencing was destroyed. After hearing the evidence the Bench stated its unwillingness to record a sentence, and on the father entering into a recognaissance for the boy's future good behaviour, the case was dismissed. (4)

This article shows how the legal system has changed, for better or worse depending on your view point, as a 12 year old would never have his name mentioned in relation to a legal trial today (if it even made it to Court)

In another case, heard on March 16, 1910 before Presiding Magistrate Harris (5) and Justices of the Peace, A’Beckett and Pearson, George Nicklen, a farmer of Iona was charged with inflicting grievous bodily harm on his 15 year old niece, Elizabeth Bidwell. This report was in the South Bourke and Mornington Journal - 

Evidence was given by Mesdames Gully and Robinson two neighbours, that Nicklen was in the habit of beating the girl unmercifully, and the case had been brought under the notice of the Society for the Prevention of Cruelty to Children.

Dr. Withington said he had examined the girl, who was covered with welts and bruises. She had apparently been subjected to a severe handling. Lizzie Bidwell, the girl in question, said her uncle, Nicklen, had chained her to her bed for days at a time, and on one occasion threatened to hang her with a rope. She was compelled to run away to Mrs. Gully's place, and that lady took her to the doctor. Nicklen denied giving the girl more than she needed. He was fined £10, with £3/5 costs, or three months in gaol. (6)

Ironically, on the same day the Court fined a man £8.00 for stealing four heifers or three months in gaol, if he didn’t pay. I don’t know what happened to poor Lizzie Bidwell but it’s sad to think that the Court valued her suffering at about the same rate as the theft of four cows.

Parents who did not send their children to school often faced court, here are two cases - 

In August 1910 Constable Ryan proceeded against J. Mannix for neglecting to send his child to school the required time. The constable stated that the teacher's report was that the child had played the truant. There were two charges against defendant The P.M. warned parents against future occurrences, as the new Act empowers the Court to deal with children by sending them to a reformatory or other suitable place. A fine of 5/ was imposed in each case. (7)

March 1914, Frank Gallagher was charged with neglecting to send his child to school - 

Constable Anstee said the boy in question had not attended school from 7th Nov. till January, and had evidently been kept at home to weed onions. The police magistrate said the case was a bad one, and defendant would be fined 5/- or three days. (8)

The Bunyip Free Press of January 15, 1914 reported that the court was crowded  when four charges of sly grog selling  were launched against an aged Assyrian with the very Anglicised name of  John Ellis. Ellis was represented by Mr M. Davine and had brought his own interpreter as he didn’t speak English. A Revenue Detective, Joseph Blake, had been working undercover in the area and he had visited Ellis  on a number of occasions as Ellis had a little shop, at Iona, with general stock; Ellis also did hair cutting.  Blake alleged that Ellis sold him alcohol, Ellis denied this.  Patrick McGrath, who leased the house to Ellis and had known him for nine years, called Ellis one of the best and straightest men on the Swamp. Mr Davine presented evidence that Joseph Blake was a professional liar and an informer.  In the end, the case was dismissed with the payment of costs; the Presiding Magistrate said we will give Ellis the benefit of the doubt if he will pay costs.  The costs were just over £17.00 but were reduced to £15.00 after some haggling; a report a few months later said the costs had been paid and the case was withdrawn. (9)

In April 1916, Ellis was back in Court -
Mr. W. W. Harris, P.M., presided at a special sitting of the Bunyip court yesterday to hear a charge of attempted murder which was preferred against a Syrian named John Ellis. The evidence of two young immigrants named Cyril and Frank Borwick showed that Ellis brought a revolver from Melbourne with him on 30th March. He was drunk, and told them he intended to shoot Constable Anstee. During the night Ellis consumed about half a bottle of whisky, and the brothers alleged that Ellis fired at both of them whilst they were asleep in bed. Cyril was shot in the hand, and Frank was shot in the left cheek. Accused was committed for trial in Melbourne. (10)

Ellis' trial was held in May 1916 and at the sentencing, Mr Justice Cussen, was reported as saying - 

said prisoner appeared almost to have been temporarily insane owing to certain charges made against him which he said were false. At the same time prisoner ought to consider himself lucky that he was not standing in the dock on a capital charge. Sentence, two years' imprisonment. (11)

Another case  involving a revenue officer was this gambling case from Garfield, heard in July 1914.

Bunyip - A young man named Frederick Carpenter in January last was convicted of conducting a common gaming house, at Garfield, and was mulcted in fines and costs totalling £15. The alternative of two months imprisonment was also imposed, but as Carpenter, who is an ex-jockey and a cripple, promised not to offend again, time to pay the fine was given him. That time was extended, but the fine was not paid. To-day Carpenter was ordered to pay £18 11/2 (fines and costs imposed previously), and was also fined an extra £10, in default two months' imprisonment, for failing to comply with the previous order of the court. Carpenter fainted in court when the decision was given, and lay across the barristers' table, but was carried out bodily by two constables and the revenue officer. The P.M. remarked that it was more "drink" than "faint." (12)  I had never come across the term mulcted before, but have discovered that a mulct  is a fine. 

In March 1915 a case concerning Cora Lynn farmer, John Rutter was heard at Bunyip and was reported in The Age and picked up by some rural newspapers -

A case of great importance to farmers was heard by Mr. W. W. Harris, P.M., at Bunyip police court, when a Cora Lynn farmer named John Rutter was proceeded against by Constable Anstee for having failed to produce a book showing the records of cattle slaughtered by him. The charge was laid under section 32 of the Butchers and Abattoirs Act. Superintendent Fowler, who conducted the prosecution, stated that on 24th February Constable Anstee and Thomas Garrett, an inspector of Berwick shire council, visited defendant's farm. Rutter told them he kept a book containing his general business transactions, but refused to let either Anstee or Garrett see it. 

For the defence Mr. Dunn contended that no offence had been proved. Every farmer was allowed to slaughter one beast weekly for his own use. Mr. Harris, P.M.: But he is not allowed to sell portion, and he must keep a book. Mr. Dunn contended that it would prove a great hardship to farmers if they were deprived from killing one beast a week for their own use. If a conviction was recorded it would probably open up many legal points. Mr. Harris, P.M., reserved his decision. (13)

Mr Harris made his decision a month later, and this was also reported in The Age - 

The police magistrate held that where a wrong construction was placed on the wording of the Government Act injustice should not be meted out to any defendant. He therefore dismissed the case without costs. Some months ago two young farmers were fined at the same court for slaughtering several calves on their farms and sending them to market for sale. Since then farmers have been afraid to kill beasts for fear of a prosecution. The decision given on Wednesday will relieve them of much anxiety. (14)  The two young farmers referred to were Victor Little and Thomas McGuire who were found guilty of slaughtering without a license in October 1913,  see here.

The sitting times for Courts were set by the Government, and they were on occasions altered, with the new hours published in the Government Gazette, but it did appear to sit weekly on a Wednesday from 1911 (15)

Sitting times in 1911

Victoria Government Gazette, November 15, 1911, p. 5528 

https://gazette.slv.vic.gov.au/images/1911/V/general/171.pdf

Sitting times from January 5, 1938

Victoria Government Gazette, November 24, 1937, p. 3852 

https://gazette.slv.vic.gov.au/images/1937/V/general/328.pdf

 

The newspaper reports of Court cases at Bunyip show that the Bench dealt with the whole range of legal matters including murder, theft, assault, arson,  traffic matters, incest, debts, using bad language and having no visible means of support.  I presume that the Court met at the Bunyip Hall, so I would be interested to know if that was the case.

The Bunyip Court officially closed on May 1, 1981. The announcement  in the Victoria Government Gazette stated that the  books and other records of the said Court and of the Clerk thereof be delivered to the Clerk of the Magistrate’s Court at Warragul. (14)

Closure of the Bunyip Court

Victoria Government Gazette, April 15, 1981, p. 1207.

https://gazette.slv.vic.gov.au/images/1981/V/general/33.pdf

Having said that, last case I could find in the newspapers concerning a hearing at the Bunyip Court was from May 1953 when the Dandenong Journal reported that Berwick and Cranbourne Shire rate payers will be pleased at the success Health Inspector K. N. McLennan is having in his war against roadside rubbish dumpers. Mr McLennan successfully prosecuted at the Bunyip Court,  J. Lyon, grocer, of Boronia, fined £3, with £3/6/6 costs, for depositing rubbish on the Princes Highway near Tynong. He also had four cases at the Pakenham Court. (17) The same paper noted in August 1953 that Mr Tom Drake was the chairman of the local Bench at the Bunyip Court. He had been appointed as a Magistrate on November 8, 1949. (18)

Tom Drake appointed as a Magistrate to the Bunyip Court

Victoria Government Gazette, November 16, 1949, p. 6120. 

https://gazette.slv.vic.gov.au/images/1949/V/general/901.pdf 

When I first researched this in 2014, my parents, Frank and Wendy Rouse, said they had no memory of the Bunyip Court at all, in spite of the fact that Dad had been at Cora Lynn for his entire life, having been born in 1933 and Mum had been there since she was married in 1956, so perhaps it didn't sit on a regular basis after the mid 1950s (or perhaps they just didn't know anyone who was involved in Court cases).

Footnotes

(1) Victoria Government Gazette, February 22, 1905, p. 834.   https://gazette.slv.vic.gov.au/images/1905/V/general/24.pdf

(2) Nest, Denise Bunyip Mechanics' Institute 1906-2006: a place of learning and entertainment (The Author, 2006)

(3) Charles Alfred Costley Cresswell - Traralgon Record, March 17, 1908 see here.

(4) South Bourke and Mornington Journal, March 22, 1905, see here.

(5) Walter William Harris - West Gippsland Gazette, June 6, 1916, see here.

(6) South Bourke and Mornington Journal, March 23, 1910, see here.

(7) South Bourke and Mornington Journal, August 17, 1910, see here.

(8) Bunyip Free Press, March 12, 1914, see here.

(9) Bunyip Free Press, January 15, 1914, see here. Bunyip Free Press, March 12, 1914, see here.

(10) The Age, April 27, 1916, see here.

(11) The Age, May 27, 1916,  see here.

(12) The Age, July 16, 1914, see here.

(13) The Age, March 16, 1915, see here.

(14) The Age, April 16, 1915, see here.

(15) Victoria Government Gazette, November 15, 1911, p. 5528
https://gazette.slv.vic.gov.au/images/1911/V/general/171.pdf 

 Victoria Government Gazette, November 24, 1937, p. 3852
https://gazette.slv.vic.gov.au/images/1937/V/general/328.pdf

(16) Victoria Government Gazette, April 15, 1981, p. 1207.   https://gazette.slv.vic.gov.au/images/1981/V/general/33.pdf

(17) Dandenong Journal, May 6, 1953, see here.

(18)  Dandenong Journal, August 26, 1953, see here; Victoria Government Gazette, November 16, 1949, p. 6120.      https://gazette.slv.vic.gov.au/images/1949/V/general/901.pdf