Wednesday, August 11, 2010

1889: The Preliminaries

Welcome back to the Court Channel, where it seems as if lately there's nothing but litigation going on, 24/7, in our investigation of the life of author George Mills. Admittedly, the breach of promise case Valerie Wiedemann brought against the Hon. Robert Horace Walpole doesn't affect George's life directly, but it must have deeply affected the life of his sister-in-law, Lady Dorothy Mills, the renowned female author, adventurer and daughter of Lord Walpole [pictured, left], and her marriage to George's half-brother, Arthur Mills. Their marriage ended in flames, and it's hard to say what effect that the dissolution of their relationship might or might not have had on Arthur's family, including George, and his spinster sisters, Agnes and Violet.

Anyway, Lady Dorothy's father, Robert, had a reputation for being tight with his money, although history shows he certainly spent enough to keep himself on the brink of solvency throughout his life. One simply needs to think of Charles Dickens's Bleak House to recall what lengthy litigation can do to one's nest egg. One wonders what Walpole spent to keep from settling out of court with Wiedemann. Had he done so—and one newspaper reported that it may have taken as little as £1000 to assuage Miss Wiedemann—one wonders how things may have turned out with his family, especially in their tragically fruitless production of an heir.

We've already read of rumors of the Countess of Orford, Louise Corbin Walpole, young bride of the future Earl, suffering from what modern wags might have termed a nervous breakdown after the first round of proceedings in the High Court under Baron Huddleston. It isn't hard to see how the scandalous trial would have been a malignancy on the couple's marriage, especially for young Louise, 12 years the junior of Walpole.

That said, Walpole and Wiedemann moved the proceedings forward, slugging it out over diaries of the plaintiff's that seemed to have existed once, but later vanished.

Here are the proceedings of two hearings pertaining to eight volumes of Miss Wiedemann's diaries, with precedents being thrown out faster than argumentative drunks at the local pub. My personal favorite: "Compagnie Financière du Pacifique v. Peruvian Guano Company."

Via the London Times of the 2nd of April and the 2nd of May, 1890, let's see exactly what occurred…

2 April 1890

WIEDEMANN V. WALPOLE. This was an appeal by the plaintiff from an order of Mr. Justice Lawrence in Chambers upholding an order of the Master ordering plaintiff to produce at her solicitors' certain volumes of manuscript diaries, particularly those for the years 1880, 1881, 1882, and 1883. Defendant was further to be allowed to make copies of them at his own expense, and proceedings were to be stayed.

Mr. Israel Davis and Mr. Evans Austin were for the plaintiff; Mr. William Graham for the defendant.

Mr. Davis, on behalf of Miss Wiedemann, contended that the Court could not act on the affidavit on which defendant relied. It was a contentions affidavit, and under the rules of the High Court a party was bound to accept the sworn affidavits of his opponent. Under Rule 18, Order 31 there was no power to compel a plaintiff or defendant, as the case might be, to give inspection or make discovery of documents in the way defendant proposed. The learned counsel then proceeded to cite the following cases, which he retied on :—"Barnett v. Noble" (Jacob and Walker's Reports, 227), "Lyell v. Kennedy" (27 Ch. D., 19), "Gardner v. Irvin" (4 E'x. D., 53), "Mogul Steam-ship Company v. M'Gregor" (2 The Times Law Reports, 725), "Morris v. Edwards" (23 QB.D., 287), and "Jones v. Montevideo Gas Company" ; (5 Q.B.D., 556). The defendant's only way to get the plaintiff's diaries, if they existed, which he gravely doubted, was to subpoena her to produce them.

Mr. GRAHAM, for the defendant, contended that the cases cited were cases bearing on discovery and not on inspection law. The learned counsel having dealt with the cases cited at some length, Mr. Davis replied, and further cited "Pickering v. Pickering" (25 Ch D., 247), "Compagnie Financière du Pacifique v. Peruvian Guano Company" (11 Q.B.D., 55), and "Mattock v. Heath" (20 S.J.,54).

MR. BARON HUDDLESTON, in giving judgment, said,—This order must be supported, and the appeal dismissed with costs. There are no general rules which can be laid down as to questions of "inspection." It must be for the Court or Judge, before whom all the facts are, to use their discretion. Now, what are the facts before us? At the trial there was a verdict for the defendant, and since then ingenious counsel have persuaded a Divisional Court and the Court of Appeal to take the somewhat unusual course of granting a new trial to a party who acted under counsel's advice, no doubt, in taking the course the plaintiff took at the trial. What now follows? The plaintiff's affidavit of documents is dated August, 1888, and on February 3 last the plaintiff is present and conducting her case in person before a Commission at Constantinople, dealing with certain matters in this case. A witness named Osman Pasha is being examined as to certain dates on which it was suggested the plaintiff was stopping at his house. He seems to have been unable to answer, and he is re-examined by plaintiff herself on the matter. She then produced a manuscript book, and tried to get witness to fix the date from it. The defendant's counsel then asked the plaintiff what book she held in her hand, and she replied that it was a diary which she always kept, and that she had eight volumes of it. It is now contended that because 22 months ago the plaintiff did not disclose these volumes, she cannot now be made to produce them. The learned Baron then proceeded to deal with the various cases cited, and with the questions of law raised on either side. MR. JUSTICE VAUGHAN WILLIAMS followed, and, having commented on the practice in such cases under the Judicature Act, concurred in the judgment.

2 May 1890

WIEDEMANN V. WALPOLE. This was an appeal against a decision of a Divisional Court, consisting of Mr. Baron Huddleston and Mr. Justice Vaughan Williams. The action was brought for breach of promise of marriage, and was tried before Mr. Baron Huddleston and a special jury. The plaintiff having declined to answer certain questions put to her, judgment was entered for the defendant. A new trial was granted and a commission was obtained to examine witnesses at Constantinople. The order against which an appeal was now brought called upon the plaintiff to produce certain diaries, and directed the action to be stayed until their production. The order was made on the affidavit of Mr. Woulfe, one of the defendant's solicitors, who deposed that during the examination of a witness named Osman Pasha at Constantinople he observed the plaintiff, who was present, referring to a book which she said was her diary, and of which she said she had eight volumes. On this affidavit the order for production was made by the Master at Chambers, and was affirmed by Mr. Justice Lawrence and by the Divisional Court. On the matter coming before the Court of Appeal Lords Justices Lindle an Bowen directed it to stand over for further affidavits, which were now filed on behalf of the plaintiff, denying that she had in her possession or control any such diaries as alleged, and contradicting Mr. Woulfe's affidavit. Mr. ISRAEL DAVIS,—for the plaintiff, contended that an order for production ought not to be made on a contentions affidavit. It could only be made on an admission in the affidavit of documents, the pleadings, or the answers to interrogatories. Mr. GRAHAM, for the defendant, said that he had always admitted that if the plaintiff said on affidavit that she had not got any such diaries the order for production would not be good, but on the materials before the Master, the Judge at Chambers, and the Divisional Court, the order was right. The COURT allowed the appeal. The MASTER of the ROLLS said that the question was whether the order for the production of these documents could stand. Without saying a word as to the law laid down by the Divisional Court, he was clearly of opinion that on the facts now before the Court, and which were not before the Divisional Court, the order could not be upheld. The plaintiff swore that she had not the books in her custody or control, and there was no reason for disbelieving her. LORD JUSTICE LOPES concurred.

Score one here for the Wiedemann camp. They never produced the volumes in question—diaries that may have contained more of the truth than any of the rhetoric ever aired during the proceedings on either side of this legal wrangling.

Next time: After luncheon on the 16th of June 1890, we'll take a seat in the rear of the High Court of Justice for the second courtroom collision between the Valerie Wiedemann and Robert Walpole.

At the same time, the Wall Street Journal had published its first edition in New York. The Oklahoma Land Rush had just occurred, creating Oklahoma City overnight and giving birth to the nickname '89ers, and Pennsylvanians were still sifting through the devastation after the Johnstown Flood killed over 2000 people following the collapse of the South Fork Dam.

Adolf Hitler had just been born in Austria, the critics sneered as the Eiffel Tower debuted in Paris, and Sheffield United F.C. and Wimbledon F.C. came into existence after Preston had won the inaugural season of the Football League.

In Naples, a baker named Raffaele Esposito created Pizza Margherita, named after Margherita of Savoy, and during Wiedemann v. Walpole, part two, Vincent Van Gogh would spend June 1889 hard at work painting his masterpiece [right], The Starry Night.

See you next time, and, as always, if you have any ideas, information, or speculation regarding the trial, please let me know!

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