The Tailor and the Shipwright

by Robert Westphal

  Some two years later in April 1837 Charles Beilby had again approached Tommy to purchase the land. While Tommy thought the offer attractive, he just could not part with his last piece of the property. However, Eliza was in a different position. She was not as emotionally attached and when offered the good price of £20 cash for her 3 acres she accepted. With both the daughters now having sold, only 7 acres of the original 40 acres remained in O’Neil’s hands. Tommy and Eliza had found Beilby a good and fair man to deal with.

  Tommy then had been very surprised to hear gossip in October 1837 that Charles Beilby had been declared insolvent. According to his creditors Beilby’s dealings with his business assets had been deceitful. As a consequence Beilby’s assets had been assigned to his creditor, John Campbell the younger. Insolvency was not an unusual feature of business in the 1830s; businessmen had to use short-term callable debt to finance their business. By necessity the assets that this debt financed, such as inventory, were not readily convertible into cash to enable repayment of the debt. Insolvency was the outcome.

  Following the earlier gossip, the 30 October 1837 edition of the Sydney Monitor reported that the police were searching for Charles Beilby on the North Shore. Tommy surmised that he could have been hiding out at his old house at Hunters Meadows.

  Only a few days later Tommy had read in the Sydney Monitor of 6 November 1837 that Messrs Beilby senior and junior, Mr R O’Ferrall and Mr Hughes had been committed for trial for a conspiracy to defraud the creditors of Mr C Beilby. The newspaper reported that police investigators had found papers at Beilby’s house at Middle Harbour that included Beilby’s detailed plan of escape along with a pretended sale of the lands at Middle Harbour to his son Frederick Beilby. A further search of the property yielded flour, wine, tea, sugar and iron mongery concealed in the eaves and other parts of the house. A jury returned a verdict of guilty against Beilby. It was thus that in November 1837 Charles Beilby, merchant and general dealer, and once wealthy businessman, was being held in the Debtors’ Prison in the Carters’ Barracks, lower George Street.

  In January 1838 Charles Beilby received a visitor and a further devastating blow. His son, Frederick Beilby, had drowned while fishing. His dingy had been caught in a wind squall and overturned.

  However, Charles Beilby’s legal matters had not ceased. He faced a criminal trial under a charge of conspiracy or collusion to defraud his creditors. He was found guilty and sentenced to two years imprisonment. According to a very detailed report in the newspaper Colonist of 19 May 1838, Charles Beilby’s 33 acres at Hunters Meadows had been placed in the hands of the Sheriff to dispose of in order to satisfy the claims of his creditors. The Sheriff duly auctioned the property:

  The sale proceeded; there were only two bidders, Dr Stewart and Mr O’Ferrall; to the latter of whom the property was knocked down for the sum of 530/- (£22/2/0).

  Thus the auction only realised approximately 10 per cent of the amount that Tom Brown and the Nerneys had received from Charles Beilby. The ultimate buyer was Mr O’Ferrall. He was the same person who had previously been committed for trial with Charles Beilby.

  A month later, in June 1838, Tommy O’Neil decided to transfer his remaining 7 acres in Hunters Meadows to Eliza. Prior to doing so he had visited William and Anastasia.

  ‘Hannah, I’ve come to talk to you about the balance of the land at Hunters Meadows. As you know 33 acres has been sold and I’ve only got 7 acres left.’

  ‘Yes, Daddy.’

  ‘As you are aware, given my earlier gifts to Eliza and Mary Ann, I had intended that I would leave the last 7 acres, including the house and orchard, to you. But I am in a difficult situation. Eliza is looking after me and needs the proceeds of the remaining acreage to make ends meet.’

  ‘I fully understand, Daddy. William and I are very comfortable.’

  ‘Would you mind if I gave the 7 acres to her? If you do mind, or if you thought it would cause a rift between the two of you, I will settle the acreage with you.’

  ‘Daddy, I think you have made the right decision. Eliza needs not only to look after you but Sarah as well. No, it’s definitely all right by William and me. I’ll cause no rift.’

  While the surveyor general had resolved location and dimension of the 40 acres in 1829, Tommy’s gifts of undefined areas of land to his Irish-born daughters and their husbands had brought a new level of confusion. Where were these areas within the Hunters Meadows portion of land? This question, given that most of the acreage was now in hands of third parties, could only be resolved by a court of law. The Court of Claims recorded the matter as Case 281.

  By September 1838 Charles Beilby was still being held in the Debtors’ Prison. He had been given a clipping from a newspaper on an intended Land Court, Court of Claims, hearing to be held in October 1838 for the land at Hunters Meadows. As he wanted to protect his position, he wrote a letter to the commissioners on 3 September 1838:

  Gentlemen

  In opposition to the application of Thomas O’Neil, I have to state that the greater portion of the land to which he lays claim was purchased by me on the express condition that the grant should be made out in my name. [O’Neil had written a letter dated 12 April 1837 stating the Deed for the forty acres should be made out in the name of Charles Beilby.] His grant was for forty acres; it was measured for me by Mr John Armstrong. I purchased 30 acres of this from the daughter of Thomas O’Neil, Brown, about three years back. It having been made over to her by him, and three acres I purchased from another daughter about one and a half years back. The same also been made over to him.

  For the 30 acres I paid £200 in two bills at 6 and 12 months which cover duly honoured. For the three acres, I paid £20 in cash. The conveyances were made by Mr James Norton, and the payments passed through his hands. The Deeds are at present in the hands of Rolla O’Ferrall who has a mortgage from the 33 acres together with some other small portions of land which I purchased from the Government. I request you will be pleased to inform me on what day the case will be heard, and I will endeavour to obtain the attendance of a professional gentleman. A lien adopted to this plan will oblige as it is by mere accident I have a newspaper.

  The commissioners found a false statement in Beilby’s letter, in that he had bought the 30 acres from George Hickson and not from the Browns. The Land Board duly convened and reported on the ownership of the farm in a report dated 25 October 1838. However, the report and decision was not issued until 15 March 1839. The Board found:

  That, as the Crown would not re-measure the land so as to give to Nerney and O’Ferrall a Deed of grant of the portions, to which they were respectively entitled, it has to be agreed by the parties interested, that the land included in case 281 should be conveyed to Mr George Allen, as trustee for them according to their respective interests.

  The Commissioners therefore, respectfully recommend that the grant of the land included in case 281, be made to George Allen of Sydney in the Colony of New South Wales, Gentleman, and to his heirs, to the use of Rolla O’Ferrall and his heirs, and to the use of Nicholas and Eliza, his wife their heirs, according to their respective rights and interests.

  The more Tommy thought about Hunters Meadows the more he kicked himself for letting his emotions rule his decision on the 7 acres. On reflection, he knew he should have followed Eliza’s advice and sold the remaining 7 acres to Beilby. He had offered on a peracre basis a commensurate price, in cash, for which Eliza had received her 3 acres. He knew that £46 would have done a lot for the family. Would Eliza find another Beilby? Maybe, maybe not.

  Nothing like an old fool, he thought. It was now time to get out of the rocking chair and head inside for a wee drop of whiskey.

  39.

  Barney Kearns’s ‘Nieces’ Seek the Shell Cove Assets

  SYDNEY TOWN, 1835

  Two sisters, Catherine and Mary Ann Kirwin, had been transported to Sydney on the Woodman in 1823, the same ship that had brought Tommy’s Irish-born daughters as free settlers. The Kir
win sisters’ crime was pickpocketing and their punishment was seven years’ transportation. The Kirwin and O’Neil women were of similar ages and had known each other since their arrival.

  By 1835 both the Kirwin sisters had received their tickets of leave. Catherine, who had changed her surname to Stanley, had married George Quinlan and Mary Ann Kirwin’s Irish husband Bernard Rourke had joined her in Sydney.

  Margaret Kearns, who changed her name to Margaret Shortly, lived a further three years at Hunters Meadows after Barney’s death. She had been ill for some time and her neighbours, John and Judith Hull, looked after her until 1835, when she passed away in their house, aged forty-three.

  Margaret left the Shell Cove land and ferry licence, formerly owned by Barney Kearns, to the Hulls. The Hulls told Tommy O’Neil of Margaret’s death.

  The O’Neil daughters told Mary Ann Rourke and Catherine Quinlan about the Shell Cove property and ferry licence bequeath.

  Following legal advice and claiming to be the ‘nieces’ of Barney Kearns, Mary Ann Rourke and Catherine Quinlan applied to the Supreme Court of New South Wales in October 1836 for Mary Ann Rourke (nee Kirwin) to be appointed administratix of Margaret Kearns’s estate and to realise the assets for the benefit of her and her sister Catherine.

  Mary Ann Rourke’s claim was that Barnard Kearns died possessed of considerable property on authority from the government. Also Barney Kearns had died ‘intestate and unmarried and without any lawful issue or next of kin him surviving in the Colony except this deponent and deponent’s sister Catherine Quinlan (nee Kirwin) the wife of George Quinlan resident near Campbell Town, farmer.’

  The nieces had a good case; however, they needed to prove that they were, in fact, Barney Kearns’s nieces.

  Three years passed while the Court deliberated.

  The Hulls, the beneficiaries of Margaret’s estate, did not know the purported nieces; however, they were acquainted with William Foster from his visits to see Margaret Kearns. The Hulls approached him to see if he could clarify the matter and bring it to a final resolution.

  As a consequence William was prepared to swear an affidavit on 21 March 1839:

  William Foster of Cumberland street, landowner, being sworn, saith I knew Barney Kearns. He died about 7 years ago – he got 2 acres of land in question to establish a ferry, and built a hut on it and plied the ferry, but he did not live in it, but on O’Neil’s land near by.

  I remember a Deed of Gift being prepared in my house, giving this land to Margaret Shortly with whom he cohabited. I had this Deed in my possession for 8 months and witnessed it and they were all perfectly sober when it was prepared.

  William went on to swear he was also present when Margaret’s will was prepared:

  When the old woman was taken ill down at Shell Cove, John Hull was the only person who went to see her and finally he brought her up to his house, where she died. Mr McEnroe prepared her will, I was present.

  William continued his testimony:

  She was quite satisfied to give the land to Hull for the trouble and pains he had taken with her. Hull also buried her. I did not see any hut or saltpans erected by one Barney Rourke whom I do not know. I have seen Mrs Rourke. She said she was the niece of Barney Kearns, but this I do not know. I never heard Barney Kearns say she was his niece. No mention was made of relations when the Deed of Gift was drawn up. I never saw the Deed of Gift after I gave it up to Margaret Shortly. She said she gave it to the Reverend Mr Therry and after her death I went with Hull to Father Therry to get it but he was not in.

  Mr and Mrs Rourke never claimed the land, to my knowledge, whilst the old woman Shortly was alive. She was in possession some 12 or 18 months after the old man’s death and before her death.

  The commissioners delivered their decision on the ownership of Shell Cove on 15 April 1839. The commissioners acknowledged that the buyer of the land from the Hulls had re-established the ferry and ruled that the ‘nieces’ had been unable to satisfactorily establish their relationship to Barney Kearns and consequently their claim had failed.

  The fact the ‘nieces’ could not prove they were Barney’s nieces was not surprising. Apart from the unlikelihood that they were who they claimed to be, only a few records had accompanied them on the transport ship.

  40.

  Epidemics and Diseases

  SYDNEY TOWN, 1837

  Since William had built his home in The Rocks, the area had changed. It had become overcrowded and poorly serviced. Buildings abutted one another and drainage was unsatisfactory. This unsanitary situation created an ideal environment for diseases to flourish and spread into epidemic, firstly influenza, then whooping cough and measles. The old and the very young were particularly vulnerable.

  By 1837 the Fosters were well established. Their home at 374 Cumberland Street, The Rocks, was well appointed. They had a tea set, silver-plated cutlery, a fine china dinner set, washbasins and toys for the growing family. They were a family striving for domestic comfort, cleanliness, personal grooming, and the education and care of their children. Anastasia and William now had six children. The latest, a little girl, was called Harriet, after her godmother Harriet Atherden, and had been born on 23 June 1837.

  William’s business was prospering and he had added to the number of properties he owned.

  William was very keen that his children would begin their adult life with the reading, writing and arithmetic skills he had so lacked in his early life. The children attended schools that were within a short walking distance of their Cumberland Street home.

  In April 1839 William went to Hobart to visit his son, William junior. In his absence, Anastasia and four of the children became sick. Ann and Harriet were the only two to avoid influenza. Anastasia made a decision to place the two of them into the Female Orphan School as a temporary measure. It was a bold decision. Ann was eleven whereas little Harriet was only two. But the temporary measure worked and saved the two of them from sickness. However, William, on his return, was furious to have two of his children recorded as entrants to the orphan school, particularly with one so young. It brought back bad memories of the time of his own incarceration. He did not want any of his children to suffer in that way and he immediately retrieved them. The family sickness finally passed, William made peace with Anastasia and the Foster family returned to good health.

  On 11 April 1840 Anastasia opened the front door to a tearful Eliza.

  ‘Daddy passed away last night in his sleep,’ Eliza sobbed.

  The two half sisters embraced, crying on each other’s shoulders. At eighty-six, Tommy was one of the oldest in the colony and his passing was not unexpected but was still a shock to the family. While Tommy in the latter years of his life had been living with Eliza, Anastasia regularly visited her father and was well aware of his state of health.

  ‘Eliza, come right in. I’m sure we will both feel better with a cup of tea, or would you prefer something stronger?’ Anastasia invited her in, trying to compose herself.

  ‘Hannah, something stronger, I think.’

  Eliza had had more time to overcome her grief. ‘Nick’s getting Daddy taken to the coroner. Then he’s coming over here,’ she said calmly.

  As they sat around the table, it became clear to Anastasia that Tommy had been physically deteriorating in recent weeks. Eliza mentioned she helped him into bed the previous evening and he was looking particularly poorly.

  ‘Hannah, when I went to see him in the morning and take him his breakfast, I realised he wasn’t breathing.’

  ‘Oh, that must have been a real shock. How terrible to find him that way,’ responded Anastasia.

  ‘Yes. He was never the same after Barney’s death. Barney not being there took the life from him. They loved each other like two brothers.’

  ‘He did enjoy Barney’s jokes. Made him laugh. Barney could tell new stories forever.’

  William joined the sisters and suggested that the women should write a tribute to their father that they would place in th
e Sydney Gazette. Following a number of drafts they came up with the following words:

  Leaving valuable Land and Property

  Born in Wicklow transported for involvement in The United Irishmen

  Appointed Governor King’s tailor

  Built up business with three convicts assigned to him as tailors

  Given land by Governor Macquarie and built a house and orchard

  Daughter born to him and Anne Kennedy in 1811

  Joined by his daughters from first marriage in Ireland

  He divided his land between them in 1823

  Soon after the draft was completed, Nicholas Nerney joined them. He advised that the coroner had found Tommy’s cause of death to be a ‘Visitation of God’.

  William tried to change the mood and said, ‘I am sure Tommy would not want us all sitting here mourning his death. Rather, he always enjoyed a wee drop of whisky; we should follow suit to celebrate his life. Let’s be off!’

  Soon after her father’s death Anastasia again fell pregnant. While Anastasia was only thirty years old, she believed seven children was more then enough to deal with and had hoped that baby Harriet was her last child.

  Thankfully Harriet was now three years old, she thought.

  At least Anastasia had her eldest daughters, Elizabeth and Ann, who were now fifteen and twelve respectively, to help raise their younger brothers and sisters.

  On 7 January 1841 the Fosters welcomed the newborn into the family and named him after George Atherden. Young George was baptised a month later at St Philip’s Church.

  It was shortly thereafter that disease again ravaged The Rocks. In May 1841 the signs and symptoms of infection – sore throat, fever, headaches and swollen lymph glands – became apparent at 374 Cumberland Street. Anastasia was run down from the birth and the feeding of George. She was the first to be diagnosed with scarlet fever. A few days later six-year-old Thomas Foster exhibited similar symptoms.