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LUBASCH & LIEBELT

Maria Elisabeth LUBASCH

1835-1890

• 5th child of Johann Gottfried LUBASCH & 2nd wife Anna Dorothea GREISER

• 1st husband  Johann Gottfried LIEBELT 1837-1866.

• 2nd husband Johann Wilhelm PAECH 1844-1916.

   

Summary

South Australian Register [Adelaide, SA:1839-1900] Wed 14 June 1865

 

 

The Family Names that are Mentioned in this Article:

 

 

Table of Contents

South Australian Register [Adelaide, SA : 1839 - 1900], Wednesday 14 June 1865, page 3
Add a caption
South Australian Register [Adelaide, SA : 1839 - 1900], Friday 16 June 1865, page 2
South Australian Register [Adelaide, SA : 1839 - 1900], Saturday 24 June 1865,  page 4   LAW AND CRIMINAL COURTS.

 

Adelaide Express [SA : 1863 - 1866], Thursday 15 June 1865, page 2.   LAW & CRIMINAL COURTS.

 

The South Australian Advertiser [Adelaide, SA : 1858 - 1889] Thursday 15 June 1865 Page 2, TOPICS OF THE DAY

 

South Australian Advertiser [Adelaide, SA : 1858 -  1889], Friday  16 June 1865, page 3

 

South Australian Weekly Chronicle [Adelaide, SA : 1858 - 1867], Saturday 17 June 1865, page 2

 

 

Adelaide Observer [SA : 1843 - 1904]. Saturday 17 June 1865, page 4
Adelaide Observer [SA : 1843 - 1904], Saturday 1 July 1865, page 3

 

Adelaide Observer [SA : 1843 - 1904], Saturday 17 June 1865, page 4

 

 

Page under construction

Christian JAENSCH to pay all costs. 

10 July 1857 Supreme Court, 

10 months after Gottfried LUBASCH's death Maria Elisabeth is given Probate of the Will.

 467. Executrix named in and appointed by the last Will and Testament of Gottfried LUBASCH late of Hahndorf in the Province of South Australia Farmer deceased a true copy  of which said last Will and Testament market 'A" is hereunder written did appear at the Supreme Court aforesaid and claim Probate of the said Will. Whereupon the same was proved approved and registered and the Administration of all and singular the goods and chattels rights credits and effects of the said Gottfried LUBASCH deceased was by order of the Court on the eighth day of July one thousand eight hundred and fifty seven, granted unto the said Maria Elisabeth LUBASCH she having first sworn that she believed the paper writing annexed to the affidavit of Christian JAENSCH and Anna Dorotea JAENSCH sworn the twentieth day of October one thousand eight hundred and fifty six and filed in this Honorable Court be the true last Will and Testament of the said Testator who died Hahndorf aforesaid on the fifth day of October one thousand eight hundred and fifty six.  

And that she would well and truly execute the said last Will and Testament of the said Gottfried LUBASCH deceased and that she the said Maria Elisabeth LUBASCH would make and exhibit unto this Honorable Court a true and perfect Inventory of all the goods and chattels rights credits and effects of the said deceased on or before the twenty ninth day of July thence preset and that she would also render a just and true account of her executorship when she might be lawfully called upon so to do and lastly that she the said Maria Elisabeth LUBASCH believed that the goods and chattels rights credits and effects of or belonging to the said deceased within the said Province and its dependencies at the time of his death did not exceed in value the sum of One thousand pounds. Given at Adelaide this tenth day of July in the year of our Lord one thousand eight hundred and fifty seven under my hand and the seal of the Supreme Court of the Province of South Australia.   Benjamin BOOTHBY, Judge."

1839 home & land allocation Hahndorf.

1857

 

Adelaide Times SA:1848-1858], Friday 18 September 1857, page 2, News of the Day

"A Return of Wills and Letters of Administration has been printed by order of the House of Assembly, showing the number of wills provided and letters of administration granted, and the several amounts paid into the Treasury with respect to the same; also a return shewing [sic] the amount of fees paid to the Receiver of Fees in the Supreme Court, on account of Common Law and Equity proceedings.  In the return of wills proved from September, 1854, to the end of July, 1857, the following is a list of property sworn to over 1,000 pounds; the items below that being too voluminous for publication:- .....LUBASCH 1,000 pounds.

 

 

 

• LUBASCH family home allotment, No 80 Main Street Hahndorf.    Reg BUTLER Hahndorf Data Base, page 204.

According to Reg BUTLER Hahndorf Data Base page 204 ‘M LIEBELT was the young child of G LUBASCH.  She rented out the ‘German Arms’ premises to the brothers in law Robert HUNT and Thomas IDE.  R HUNT shifted the hotel business across the street in 1862. 

1869 Wilhelm PAECH LTO title, Husband of Maria LIEBELT, née LUBASCH he operated the ‘Union Inn’ at this stage, at the other end of Hahndorf’s Main Street.

 

1865 Maria Elisabeth LUBASCH is taken to the Supreme Court again.

1865 'LAW AND CRIMINAL COURTS., The Adelaide Express (SA: 1863 - 1866), 15 June, p. 2., viewed 04 Aug 2022, http://nla.gov.au/nla.news article207602069

1865 'LAW AND CRIMINAL COURTS., South Australian Register (Adelaide, SA: 1839 - 1900), 24 June, p. 4., viewed 31 July 2022, http://nla.gov.au/nla.news-article39127492’

 

 

1865 Maria Elisabeth LUBASCH is taken to the Supreme Court again.

1865 'LAW AND CRIMINAL COURTS., The Adelaide Express (SA: 1863 - 1866), 15 June, p. 2., viewed 04 Aug 2022, http://nla.gov.au/nla.news article207602069

Author's Note: On 16 December 1859 Maria Elisabeth  married husband no 1, Johann Gottfried LIEBELT

• 8 years after the disputed Will [1857] that was found in her favour, 30 year old Maria Elizabeth LUBASCH is taken to court by her brother-in-law, J.G. WEITH.
• Maria Elisabeth is now the defendant and her previous lawyer Mr Edward Castres GWYNNE is now the Judge, there is no jury.
• Maria Elisabeth is represented by Mr DALY
• The Plaintiff Johann Gottfried WEITH represented by Mr INGLEBY & Mr HATCHETT
• Interpreter, Dr HUBBE.

 

1865:   WEITH [sic] V LIEBELT

Mr ANDREWS wrote out an agreement in 1857 at LUBASCH’s request but WIETH refused to sign it.

Received no money from his deceased father in law, but he built a house for him. It was a one roomed slab hut.  

15 June 1865 Adelaide Express [SA : 1863-1866] page 2

LAW AND CRIMINAL COURTS Supreme Court-Civil Sittings.  This day. Thursday June 15  [Before His Honour Mr Justice GWYNNE, without a Jury] WEITH [sic] v LIEBELT and UXOR.  Mr INGLEBY and Mr HACKETT for the plaintiff, and Mr DALY for the defendant.  

This was an action to recover 150 pound upon a promise under the following circumstances:- In 1856, one Godfried LEUBASCH (sic) died leaving five daughter him surviving, all of whom, except one, the present defendant, were then married.  

Two days before the decease of LEUBASCH he signed a will leaving the bulk of his freehold and personality to his unmarried daughter, but it being whispered about that the testator was not in his right mind when he made the will, the whole of the husbands of the married daughters, except the plaintiff, who was married to one of them, threatened proceedings to set aside the will, and the plaintiff was induced to join the other on the defendant's promise to give him 150 pound.  

1st Witness: Johann Gotlieb [sic] WIETH 

Proceedings were taken by the other brothers in law to upset the will, which was upheld, but the defendant never paid to the plaintiff the 150 pound as promised.  Mr HATCHETT opened the pleadings and called Johann Gotlieb WIETH, the plaintiff, who stated that he married Louisa LEUBASCH (sic) daughter of Mr. LEUBASCH deceased, in the year 1840. Remembered Mr LEUBASCH dying about the 5 October, 1856.  

He was not present when the will was read.  After his death, he [witness] had a conversation with the present defendant, when she persuaded him not to join with the other brothers in law in taking proceedings against her.  He understood her to mean that he was not to join in the proceedings to set aside her father's will.  

Mr ANDREWS drew out a writing for that purpose, but he [witness] did not sign it. She came to him afterwards weeping, and asked him not to go to law and to sign a paper.  He told her that he would not join the others in going to law, but he would not sign any agreement.  She told him that if he would not go to law she would give him 150 pound, and in consequence of that promise he took now law proceedings in reference to the will, and the defendant took possession of the whole of the freehold and chattels of her father.

There was a trial had against her by the other relatives, and the day after that trial the defendant told him she would keep her promise, and they then went to Mr NOOTNAGEL's of chi to put into writing what she had previously promised.  Four other persons were present, and one of them signed as a witness a paper [produced], which expressed that if she succeeded in getting possession of all the estate of her deceased father under his will that she would pay him, the plaintiff, 150 pound at Christmas, 1857, or at Christmas 1859, with 8 percent, interest in the meantime.  

By Mr INGLEBY - since witness instructed Mr HATCHETT to bring the present action he went to the defendant and asked her if she would give him the 150 pound.  She replied that she had no money then, and therefor could not pay him.  

By Mr DALY - He first came to the colony in 1855, and married his wife in 1840.  Received no money from his deceased father in law, but he built a house for him. It was a one roomed slab hut.  The second or third day after the funeral the meeting at Mr ANDREW's office took place. When the conversation took place there he knew that the whole of the other children intended to take proceedings against Mrs LIEBELT, and with reference to the 150 pound, Mrs LIEBELT said to him that she had heard he did not intend to go to law, and that she would give him 150 pound. He intended to have joined the others in the proceedings had she not promised him the 150 pound. The case was unfinished when we went to press.

LAW AND CRIMINAL COURTS. Supreme Court-Civil Sittings

Thursday June 15, (Before His Honour, Mr Justice GWYNNE)  WIETH v LIEBELT .........This was a case in which the facts were not disputed, and was therefore, by arrangement, heard before His Honour without the intervention of the Jury....... and Mr DALY for the defendants.  

Interpreter, Dr HUBBE.  Mr HATCHETT read the pleadings, and Mr INGLEBY stated the case.  

The action was brought to recover 150 pound and interest due thereon at 8 percent.  On the 22nd and 23 of June 1858, an action (LUBASCH v JAENSCH) was tried in the Supreme Court as to the validity of the will of Gottfried LUBASCH. The question in dispute was as to whether the deceased was of sound mind when he made his will.  He had at the time five daughters, four of whom were married, and by the terms of the will his single daughter, Maria Elizabeth LUBASCH, the present defendant, was the most largely benefited, the real estate having been bequeathed to her.  

The will was dated October 3, 1856; the testator died October 4 1856; and the will was proved July 8, 1857. The validity of the will was upheld by the Jury.  Previous to the trial, however the present defendant entered into a verbal agreement with the plaintiff that if he refrained from taking part with the other members of the family in impeaching the will, she would undertake to pay him 150 pound.

After the trial in the Supreme Court had taken place she expressed her pleasure that the present plaintiff had not joined in the proceedings, and she accordingly ratified her promise by signing an agreement, of which the following is a translation:- 

Adelaide, June 24, 1857, - It is agreed between Miss Maria Elizabeth LUBASCH of Hahndorf, and Johann Gottlieb WEITH of Hahndorf, bricklayer, that Miss Maria Elizabeth LUBASCH, in case she gets into possession of all the estate left by her deceased father Gottfried LUBASCH, as provided for by his [LUBASCH'S] will, shall pay to J.G. WEITH the sum of 150 pound sterling, Christmas 1857.  If  M.E.LUBASCH cannot pay the money in 1857 Christmas, then she shall certain play the money to J.G. WEITH at Christmas 1858, and pay to him interest at 8 per cent, yearly. Witness the signature- G.DOLLING, M.E.LUBASCH, Gottlieb WEITH." 

The question therefore arose as to whether ... evidence as to what transpired before the trial could be taken as interpreting this written agreement, for the purpose of proving mutuality and consideration, without bringing the case within either the Statute of Limitations or the Statute of Fraud.  The following witness for the plaintiff were called and examined by Mr HATCHETT:-

Johann Gottlieb WEITH [the plaintiff], mason lived at Hahndorf, and married Louisa LUBASCH in 1840.  Remembered the death of his wife's father about October 5, 1856 and that he left a will or testamentary paper.  Remembered Maria Elizabeth LUBASCH asking him not to join with the other brothers in law in taking proceedings respecting the will.  Understood her to mean that she wished him not to join in disputing or attacking the validity of the will.  

A writing or agreement was prepared by Mr ANDREWS, but he did not sign it. The female defendant came to witness some time afterwards weeping, and begging him not to go to law.  Witness said he would not join with the others in going to  law, when she said she would in that case give him 150 pound.  In consequence of this agreement he took no part in the proceedings.  

His Honour, in reply to Mr DALY, said he could take no notice of any parol..... evidence which contradicted or varied the written agreement. 

Examination continued- The defendant's wife obtained possession of the estate and furniture of her deceased father. Remembered a trial in that Court, and witness saw the female defendant the day after.  They went to Mr NOOTNAGEL's in order that she might give witness in writing what she had already promised.  There were present Mr DOLLING, the father of LIEBELT, and Pastor STREMPEL.

The document produced was signed at that time.  His Honor-If there had been only a verbal contract, the plaintiff would be precluded from bringing an action by the Statute of Limitations.

Mr INGLEBY- The Statute of Limitations had not been pleaded.  Issue had only been joined upon the question of special contract.  

Mr DALY submitted that his learned friend should rely either upon the verbal agreement or the written one.  If he relied upon the former, the answer to that would be the Statute of Limitations, and if he relied upon the latter, there was no consideration named, and therefore the claim could not be upheld on that account.  

Examination of the plaintiff continued by Mr....... expecting the time of payment.  It was fixed when they went to Mr NOOTNAGEL.  Had seen Mrs LIEBELT since the issue of the writ, and asked her if she would pay the 150 pound.  She said she could not pay him then, as she had no money.  

By Mr DALY - Came into the colony in 1855, and was married in 1840.  The father-in-law assisted to build his house.  It was only a one room slab hut.  The meeting with Mr ANDREWS was on the second or third day after the funeral of his father-in-law.  The present defendant's wife, then Miss LUBASCH, said at that time she had heard that he [plaintiff] did not intend going to law, and she would give him 150 pound.  Would have joined with the other brothers-in-law in contesting the will if she had not promised to pay the 150 pound.  

The object in going to Mr NOOTNAGEL was to have the previous promise reduced in writing.  Gottfried DOLLING, farmer, lived near Hahndorf, and was the attesting witness to the agreement produced.  

His Honour - In point of morality there was no question but that the defendant was bound to pay the 150 pound, unless it could be shown that Mrs LIEBELT never came into possession of the estate.  The only question was as to whether the claim of the plaintiff could be maintained in law.  Every person who made a promise was bound to perform it, though indeed, according to Dr DALEY, there were exceptions even to this, as in cases of promises being extorted by a highwayman.  

Mr DALY said that it was well known that the defendant was not in a position to pay the amount, and that she had no disposition to shirk her moral obligations.  He intended, however to show in evidence that she was not put in possession of the property as she had anticipated when. 

His Honour-If she is not in possession, that is another matter.  

Mr INGLEBY- But this is not put in issue. 

Heinrich NOOTNAGEL gave evidence as to his having drawn up the agreement which had been produced; and on being recalled at a subsequent part of the proceedings he stated as follows:-

I was here on the day of the trial, and saw the present plaintiff and Maria Elizabeth LUBASCH afterwards at my office in Gawler place.  We had been taking over this matter before, and therefore I knew what they came to my office for.  Maria LUBASCH gave instructions to draw up the agreement, and WEITH concurred in it after it was written.  Something was said about the time of payment of the 150 pound and other matters; but the amount to be paid was quite understood.

It was stated in conversation that the reason why this money was to be paid was this -that WEITH had not joined with the others in the action which had taken place respecting the will of the late Gottlieb LUBASCH.  

C.A. WILSON, Registrar and Chief Clerk of the Supreme Court, produced the documents connected with the administration of the will in the Ecclesiastical side of the Court.  

Mr. INGLEBY obtained leave to amend, by inserting in the declaration a statement that the defendants were in possession of the property referred to in the agreement. 

Mr DALY asked permission to traverse by amending his plea, and applied for an adjournment of the case, on the ground that he had been taken by surprise.  An argument followed upon some nice points of law, which resulted in the plaintiff being nonsuited, with the understanding the case should be brought before the Full Court.

Friday 23 June 1865

 

1865 'LAW AND CRIMINAL COURTS., South Australian Register (Adelaide, SA: 1839 - 1900), 24 June, p. 4., viewed 31 July 2022, http://nla.gov.au/nla.news-article39127492’. LAW AND CRIMINAL COURTS Supreme Court-In BANCO, Friday June 23 (Before the Full Court) Habeas Corpus.  

WIETH v LIEBELT.

This case has been frequently before the Court.  An action to recover 150 pound and interest was tried before Mr Justice GWYNNE, July 15, without the intervention of a Jury, the facts being undisputed.  

A question as to whether parol evidence could be admitted to show the consideration for which the written agreement was made, upon which the plaintiff ......... his claim, was raised during the trial, and a nonsuited was entered by consent, with the understanding that the legal point thus raised would be brought before the Full Court.

Mr INGLEBY now moved for a rule.... to set aside the nonsuit, and that a new trial should be granted.  He read the pleadings, and proceeded to argue that the writing relied upon by the plaintiff contained sufficient evidence upon it face to let in parol evidence in proof of the consideration upon which the contract was based; and that a written contract necessarily implied that an agreement had previously been made of which the writing was only the evidence.  

In answer to the Chief Justice, Mr INGLEBY stated that he drew a distinction between a parol agreement and a written contract made contemporaneously, and in which the parties themselves were their own amanuensea, and written documents in which the parties employed another person to express in writing what had sometime previously been agreed upon, as in the present case.

In the former case it would have been difficult to support his application.  The learned gentleman maintained that there was no authority to prevent the admission of parol evidence in a case of this kind, in which the legality of the contract could not be disputed.

Justice GWYNNE read from Taylor an extract to the effect that in cases in which the parties resorted to writing for the purpose of expressing the nature of the agreement they had entered into no parol evidence could be admitted to contradict, vary, add to, or subtract from the contract; and remarked that the law of the case could not possibly be more clearly defined.  

The Chief Justice said he would have been glad in this case if anything could have been advanced to show that what had long been considered an elementary principle of law was wrong, but in the absence of any such proof he did not think the rule, if granted could be upheld.

Mr INGLEBY in that case did not wish to involve the plaintiff in the expense of the rule.

Author’s note:

• Parol Evidence
  • ”In contract disputes, parol evidence is any agreement that is not contained within the written contract.  Under the parol evidence rule, these agreements made outside of the contract are inadmissible in court unless there is evidence of fraud, duress, or a mutual mistake.”
  • ”An example of parol evidence is when two parties agree in a contract to exchange a good for money on a specific date.  One party receives the goods, but does not pay.  The unpaid party sues and wants to apply an additional fee for nonpayment”. [https://study.com}
• Johann Gottlieb WEITH [sic]
  • Married in 1840
  • Came to colony in 1855
  • Received no money from Gottfried LUBASCH, his father in law.
  • WIETH built a house for LUBASCH, it was a one roomed slab hut.
  • Gottfried assisted to build his house.
  • WIETH was a bricklayer
• G DOLLING the witness
  • Johann Gottfried DOLLING [1810-1887, 55 years of age in 1865] Lot 5a, Hahndorf, of Sections 4233 & 4234 Hd of Kuitpo. 1860, 10 June.
  • Sold his land to Emil Louis Alfred Von DOUSSA
  •  

  Adelaide Hills Localwiki Crops, SA Almanac 1844 'Gottfried Lubasch had 13 cattle

 

1857

Adelaide Times SA:1848-1858], Friday 18 September 1857, page 2, News of the Day

"A Return of Wills and Letters of Administration has been printed by order of the House of Assembly, showing the number of wills provided and letters of administration granted, and the several amounts paid into the Treasury with respect to the same; also a return shewing [sic] the amount of fees paid to the Receiver of Fees in the Supreme Court, on account of Common Law and Equity proceedings.  In the return of wills proved from September, 1854, to the end of July, 1857, the following is a list of property sworn to over 1,000 pounds; the items below that being too voluminous for publication:- .....LUBASCH 1,000 pounds.

 

 

South Australian Register [Adelaide, SA :1839-1900], Saturday 6 February 1858, page 4.

 

 

Adelaide Register [SA : 1839-1900],  Friday 18 September 1857, page 3, Central Road Board
	South-Eastern District, Road near Hahndorf. Mr. C. LUBASCH, of Hahndorf, wrote to complain that the Echunga District Council intended selling the pubic road passing through Section 3812, on the way to Mount Barker, to the injury of the contiguous property, and in violation of a promise to his late father.  He wished the Board to interpose its authority for the prevention of the sale.

 

References

 

Hahndorf Volume 1, a survey carried out for the Australian Heritage Commission G.Young, I.Harmsdorf, L.Brasse, A.Marsden

 

Bibliography

Notes

 

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