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Eng. Rep.]

TICHBORNE V. TICHBORNE.

[Eng. Rep.

66

ing up a set of documents, which have never

and distinct tendency, and I say are intended to been submitted to the Judge who has to deter

have a tendency, towards directing and swaying mine the case, and making comments upon them. the mind of the Court or jury, or whoever may This is the first intimation I have had of a single have to determine the cause. Let us examine word of the evidence, and it has never yet been

wbat the comments are. Every turn of the case submitted to the Judge. The animus of the

is put adversely to the claimant. I was surcommentary we gather in a great measure from

prised at Mr. Speed's figure of speech when he the concluding paragraph of the article, because,

expressed his doubt as to who had reason to having taken the evidence in his band, and com

complain of the article. The article is in fact mented on it whether correctly or not, I cannot

an argument, not an incapable argument, for I say), he concludes by stating that this is the

am not accusing the writer of incapacity, but it oply evidence which the plaintiff at present has

is an able argument adverse to the view put forbrougbt forward, and he says—“We bappen to ward by the plaintiff. The writer says he has know as a fact that (certain gentlemen whom he read the affidavits, but he does not give the pubnames, supposed relatives of the claimant, his

lic the information contained in the affidavits, so uncle and certain officers, and his aunt and his

that the public may form their judgment upon cousin, who are all named.) have had interviews

the affidavits, or even upon portions of them, with him.” How does this writer know that

but he points out some two or three facts which fact? Of course he has been in communication

he says are stated, and then makes strong comwith some one or other of these parties, and

ments upon the omissions. The article begins some one or other of these parties, the writer

by stating that the plaintiff's tale is tbat he was presumes, from their pot having made affidavits,

lost in a vessel and saved in another vessel, and do not favour the claimant's case, because, bo

then it states “neither the name of the vessel says, “Do we not find any affidavits from them

that thus saved the claimant's life, nor of her in corroboration of this identity among the docu- captain, or of any of his rescued shipmates, are ments included in the volume now before us, we given in the claimant's affidavit.” Tben it propresume that they failed to recognise in the

ceeds to relate his interview with his mother, claimant their long-lost relative.” That affords and her statement in her affidavit. That seems a clue to the source from whence this article

to be principally narrative, and at the end of it emanateg.

she says that in her judgment "his features, It was stated that the plaintiff bad not made disposition, and are unmistakeable, and an affidavit stating that he did not furnish the must be recognised by any impartial and unprebook of affidavits to this author of this commen- judiced persons who knew him before he left tary. "Qui s'excuse s'accuse." Why should be England, and that his memory as to everything swear to anything of the kind? We all know which occurred to him up to the time of his that, in matiers of an interlocutory description, leaving England is perfect.” That is made use if the defendant really believed or suspected any- of .again in a further part of the argument. thiog of the kind, it would be easy for bim sim- Then the writer says: “We have not space to ply to set forth certain facts, pledging his belief enter into details as to the statements of the to the truth of them, and that would be sufficient thirty-four persons whose affidavits follow those to call upon the plaintiff to answer them. The of the claimant and Lady Tichborne. Many of plaintiff is not obliged to excuse himself before- them are important enough." Even that is band from all the possible motives that may be qualified by saying, “if the deponents can enimpute.i to bim in the course of a cause before dure cross-examination in the witness-box, many anybody has ventured to accuse him.

are obviously false, absurd, and worthless, being Then something has been read from the bill those of persons who, never having seen the in order to show that the plaintiff has courted claimant before he left England, are neverthethe attention of the public to bis case. That less convinced that he is the person be claims to may or may not be so. But the statement which

be.” I say, as to such a comment as tbat, it is is contained in the bill says nothing on earth quite obvious in whose favour the comment is about any affidavit which had been fied to sup- made, but such a comment as that far transcends port his case; it says nothing about anything the bounds of any legitimate comment, if it were pending before the Court-it could not, in fact, legitimate or could be legitimate to make combecause there was, of course, no affidavit filed ments anterior to the case being beard or the anterior to the suit being instituted. Now wbat affidavits being brought before the Court which are these comments which are said to be fair has to decide upon it. Then the writer says: comments, which are said to be unbiassed com- "many of them are important enough, if the ments, and which are said further not to err against those rules which have been laid down witness-box; many are obviously false, absurd, as tair comments on matters of public interest and worthless, being those of persons who, never and public notoriety ? In the first place, let me having seen the claimsnt before he left England, observe, that rule does not extend to comments are nevertheless convinced that he is the persen of any description on a matter that is pending, who he claims to be." No details of those affiwaiting for argument and waiting for decision, davits are given. For aught I know it may be and I think this Court would be failing extremely open on argument to show that notwithstanding in the administration of justice if it allowed those persons may not have seen him, they may comments of such a description as are here con- have had some other good reasons for their betained to be made on any documents whatever lief; they may have had letters from him, or which are before the writer and not before the some correspondence with him; a certain numCourt, but which are afterwards to come before ber of circumstances may be stated which may the Court, and wbich comments have a clear have led to their being so convinced. I cannot, Eng. Rep.]

TICHBORNE V. TICHBORNE.

[Eng. Rep.

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therefore, say that, on the mere statement of the to me plain and manifest that this is a most improfact, that they never saw him before he left Eng. per interference with the administration of jus. land, and are nevertheless convinced that he is tice. I shall reserve what is to be done until I the person he claims to be, they must be obvi- have heard the other cases. ously false, absurd, and worthless. Neither do There were similar motions against other news. I think that any person, having a mind to com- papers. The first of these were against the ment fairly upon the affidavits at all, would have Times and the Morning Advertiser, which papers 80 characterized the affidavits which any person had simply published the article

complained of as had made in the cause, or would have thougbt it an extract from the Pall Mall Gazette. decent or proper, before any proper argument Roxburg, Q.C., and A. G. Marten, appeared for had been offered to the court on the effect of the

the Times and the Morniny Advertiser, and subaffidavits, to say there are the affidavits of thirty- mitted that as these papers had merely copied four persons, many of them are important the article and made no comments of their own, enough, if the deponents can endure cross-exam

they ought not to be made to pay the costs of ipation in the witness-box; many are obviously the motion. false, absurd, and wortbless." Then the article

The next motions were those against the Southproceeds after that to say: “ Perhaps the most

ampton Times and the Hampshire Chronicle. The important of all is the affidavit of Major Hey

Southampton Times had printed a synopsis of the wood, late of the carabineers, who served with

evidence without any comment. Mr. Roger Tichborne in that regiment for nearly

Shebbeare appeared for this paper and submitted two years." Then the writer gives his state

that nothing could be less objectionable than their ment, in which he says he has no doubt what

synopsis, which was all in favour of the plaintiff. ever as to his identity. Then it goes on, “ There are also the affidavits of two or three persons

[Wood, V.C -I think, Mr. Giffard, you might formerly non-commissioned officers, privates,

have given them a simple notice not to print and servants in the carabineers, who also bear this. ] witness tbat the claimant is co-identical with The case of the Hampshire Chronicle was the Cornet Tichborne, who formerly served with

similar. them in that regiment.” Then the writer adds W. W. Cooper, appeared for this paper, which this: “No single member of either the Seymour he submitted bad not been guilty of any contempt or the Tickborne families, nor any of the numer- of Court. The only case where parties had been ous officers with whom he served in the carabi- committed for merely publishing affidavits was neers, with the single exception of Major Hey- that of Cann v. Cann, reported in a note to wood, have made any affidavits of their belief in Matthews v. Smith, 3 Hare, 383, and in that case the claimant's identity. As, according to the the circumstances do not appear. dowager Lady Tichborne's affidavit the claim- The remaining motions were against the Hampant's person and manner are little changed, and shire Independent and the Morning Post. as his memory is perfect there can be no doubt It was alleged by the plaintiff that the Hampthat when the case comes to be tried the claim- shire Independent had published extracts from the ant will readily obtain justice. The name of a affidavits, and also re-published the article from vessel in the Australian trade, wbich in 1854 the Pall Mall Gazette, after the plaintiff had given picked up at sea nine shipwrecked persons, them notice of motion. maintained them on board for three months, Higgins, for the Hampshire Independent, asked and landed them at Melbourne, can easily be for leave to answer this evidence ascertained; it is more than probable that some The Morning Post had published extracts from of the other survivors of the wreck of the Bella the plaintiff's affidavits in an article which ended may be in existence, the gentleman by whom by stating the effect from the evidence, which it Mr. Roger Tichborne was educated at Stony- would probably be produced from the defence. hurst, and the Roinna Catholic priest by whom kay, Q C., for the printer of the Morning Post, his religious exercises were directed, must be submitted that he had committed no contempt. accessible, and at least a score of his brother If he had done so, he made an humble apology officers in the carabineers will be available, and for it. unbinssed witnesses as to bis identity.”

Sir R. Palmer, Q C.—Perhaps your Honour will And then there is this:-“We happen to know allow me to say, on behalf of Mr. Sharpe, the as a fact that several of his relations have bad publisher of the Pull Hall Gazette, that, of course. interviews with the claimant, and have failed to it was not his intention to commit a contempt of recognize him, and as we do not find any affida- this Court, and of having been informed of your vits from them in corroboration of his identity Honour's judgment he makes his humble subamong the documents now included in the volume mission and apology in the most respectful way: now before us, we presume they have failed to Wood, V.C. --That is a very proper course, and recognize in the claimant their long lost relative.” I am now glad that I suspended my judgment This is an argument, and a powerful argument As to the Pull Mall Gazette, which has been the addressed by this person, whoever he may be, source of the evil as regards the Times and the who wrote this article, against the claim made by Morning Adverliser; but, after the submission the plaintiff; and that powerful argument not which has been made, I think it is quite sufficient only indicates the bias of the writer's mind, but for the purposes of justice to order the Pall sil it is coupled with the observation that many of Gazelle to pay the costs of the motion. tbe claimant's witnesses would be important if With regard to the other newspapers. Although they could bear cross-ex:unination in the witness- it is no defence to say they did it through igrobox, and that many of their statements are “00. rance, I am bound to say with regaru to ille conviously false, absurd, and worthless." It appears try papers, which are not in the hands of men

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Irish Rep.]

PURCELL V. DOUGLAS.

(Irish Rep.

of the same intelligence and talent as those who ther defence to the entire, which was in the folconduct Dewspapers in London, it is an evil inci- lowing terms:-As to £33 17s. 6d., part of the dent to the improvement we have made in Chan. said sum of £94 6s. 6d., defendant says that cery practice in printing documents that they are before the commencement of this suit the plainmore easily circulated than they used to be: ard, tiff was, and still is, indebted to the defendant as to those Hampshire papers, I would rather in a sum equal to the said sum of £33 178. 6d., abstain from pronouncing an opinion until I hear for work and labour done and performed. And more of the particular case in which you have to as to the sum of £60 9s., being other part of the answer the affidavit, Mr. Giffard, from which it said sum of £94 6s. 6d., defendant says that the appears that the affidavits got into the Hampshire plaintiff ought not further to maintain his action paper frow merely reprinting the documents pub- in respect of the said sum of £60 98., because lished by you. I shall consider whether that is the defendant says that after the commencement a case in which the motion ought to be made at of this suit, and since the last pleading in this all. 1 postpone all the cases about the Hamp- action was pleaded, defendant satisfied and disshire papers. With regard to the Morning Post, charged the said sum of £60 9s. by payment I think I must make the printer pay the costs. He thereof in manner hereon endorsed. will be indempified no doubt. The printer is the E Gibson, in support of the motion.-The person who is brought up in many of these cases. portion of the ples which deals with the sum of In the celebrated case of “ Junius'e Letters,” £33 17s. 6d. is defective, because, commencing State Tr. xx. 895, Mr. Woodfall was the printer, as a plea of set-off, it omits the usual and necesand was not the person who supplied the infor- sary averment that defendant is willing to set off mation. But the article in the Morning Post goes that sum against an equal amount of plaintiff's beyond, merely representing the article as ex- claim. The part of the plea which deals with tracted from the Pall Mall Gazette. From what the sum of £60 9s., is either a plea of accord that article states, it is clear they must have been and satisfaction, in which case it should aver in communication with some person who was our acceptance of the money, but it does not; or. wishing to make what Lord Hardwick calls an it is a plea of puis darrein continuance, in which improper attempt to prejudice the case before it case it should comply with the provisions of the was beard. No doubt they may have thought it 73rd section of the Common Law Procedure Act fair, that as they stated the evidence on one side, of 1853, requiring an affidavit that the matter they should state what they understood was to be of the plen arose witbin eight days next before produced on the other. It only shows how unfor- the pleading of such defence, unless the Court tunate it is that they should have a notion that shall otherwise order; here there is no such they ought to print anything at all when the case affidavit, and no such order; or, lastly, it is a is in embryo, and in such a stage that one side plen in bar of the further inaintenance of the only bas filed affidavits which have not been read action, in which cases it cannot stand along with before the Court. As to the Morning Post, I. the traverses which go to the entire cause of acmake them pay the costs; us to the Times and tion : Suckling v. Wilson, 4 Dowl. & 6 167. ibe Morning Advertiser, it is enough to say that O‘Driscoil. in support of the plea — The averthere will be no costs on either side

ment that the defendunt is willing to set-off the

£33 17 6:1 against an equal portion of the IRISH REPORTS.

plaintiff's claim is merely formal, and its omis. sion will not vitiate the plea if it be otherwise

evident that such is the purport and intention of CHANCERE.

the plea

The part of the plen which deals with

the sum of £60 9s. is not a plea puis darrein conPURCELL V. Douglas. *

tinuunce ; it is therefore not subject to the proPractice- Pleading -- Inconsistent plas- Pl.a juis durrein

visions of section 73 of the Article; it is a plea continuance--Piea in bur of further maurnance of the to the further maintenance of the action. govaction-Common Law Procedure Acb (terlun), 1853. ss. erned by section 72. Such a plea may be pleaded 58, 72, 73.1

along with a traverse of the entire cause of acA plea, purporting to be a plea of set-cft, is bad if it omit to aser the defendant's willingness tu set off the amount

tion ; section 58: Cook v. Hopeweil, 11 Ex. 555. against the plaintiff's claim.

4 W. R. 291 ; Henry v. Earl, 8 M. & W. 228; A plea puis durrein continuance will be set aside if pleaded

Suckling v. Wilson, ubi sup., is inapplicable to without the affidavit required by the 73rd section of the Common Law Procedure Act (Ireland), 1853, or an order the present system of pleading. of the Court, in the absence of such affidavit.

E. Gibson, in reply. A plea in bar of the further maintenance of the action will not be allowed along with traverces going to the entire

GEORGE, J.-The first part of the third plen cause of the action.

purports on the face of it to be a plea of set-off, The plea of payment mentioned in the 581b section of the Act above quoted is a plea of payment betore action of the

and, in my opinion, it is clearly bad, as omitting entire sum claimed.

the averment of the defendant's willingness to (15 W. R. 1019. C. P. (Ir.) July 1.) set off the amount. The remainder of the plea This was an application to set aside a plea as

appears to me to purport to be a plea puis darembarrassing.

rein continuance ; its terms are precisely those The action was brought to recover a sum of

which should be used in such a plea. If it be a £94 6s. 68., money had and received, and due

plea puis darrein continuance, it is open to the on accounts stated. The defendant pleaded a

objection of not fulfilling the requirements of the traverse of each cause of action, and also a fur.

73rd section of the Common Law Procedure Act

of 185'. It is argued, however, by the counsel * Pefore GEORGE, J., sitting in Consolidated Chamber.

for the defendant, that it is a plea to the further Corresponding to the 84th, 65th, and 6$th sections of section, and sanctioned by the 58th. The latter

maintenance of the action, governed by the 72nd the 15 & 16 Vict. c. 76.

DIGEST OF ENGLISH LAW REPORTS.

section permits a defence denying the debt to be pleaded along with a plea of payment. In my opinion by such a plea of payment is meant a payment of the entire amount before action brought. A defence of payment after action brought has never been allowed along with traverses going to the entire cause of action. The cases cited by counsel for the defendant, there. fore, do not apply to the present case, where such traverses are pleaded. The defence must be set aside, with costs; the defendant to be at liberty to amend, as he may be advised, within two days.

Rule accordingly.

DIGEST.

DIGEST OF ENGLISH LAW REPORTS.

FOR THE MONTHS OF NOVEMBER AND DECEMBER,

1866, AVD JANUARY, 1867.

(Continued from page 105.) ADEMPTION.--See WILL, 11. ADMINISTRATION.

1. A guardian of an infant sole next of kin is entitled to administration in preference to creditors; and the latter cannot require the guardian to give justifying security, unless a very strong case for so doing is mode out.John v. Bradbury, Law Rep. 1 P. & D. 245.

2. A testator, by will, gave his property to trustees in trust, to invest part in an annuity for his widow, and to divide the residue among his children; the amount of the annuity and the names of the trustees and executors were left in blank. Administration with the will annexed was granted to the widow.—Goods of Pool, Law Rep. 1 P. & D. 206.

3. At an intestate's death, A., his only next of kin, was in New Zealand. On its appearing that immediate representation was necessary to preserve the estate, administration granted to the intestate's sister for the benefit of A., limited till the grant should be made to A., or his attorney, and the administratrix was ordered to give justifying security.- Goods of Cholwill, Law Rep. 1 P. & D. 192.

4. A creditor was allowed to cite the next of kin to take administration, or show cause why it should not be granted to the applicant, though his right of action was barred by the statute of limitations.- Goods of Coombs, Law Rep. 1 P. & D. 193.

5. In a suit by creditors to administer the realty, there being no personalty, and the realty proving deficient, the costs of the plaintiffs and of the beneficial devisee, defendants, were taxed as between party and party, and paid pari passu out of the fund; and the

balance of the fund was applied to pay plaintiffs’
extra costs as between solicitor and client, and
then to pay debts. --Henderson v. Dodds, Law
Rep. 2 Eq. 532.
See MARSHALLING OF ASSETS; PROBATE PRAC-

TICE; WILL, 4.
AFFIDAVIT TO HOLD To Bail.--Sce PRACTICE, 3.
AGENT. —See PRINCIPAL AND AGENT.
AGREEMENT.-See CONTRACT.
ALIMONY.

1. The fact that a husband is obliged, in order to earn his income, to live in a more ex. pensive place than the wife, will be considered in allotting permanent alimony. — Louis v. Louis, Law Rep. 1 P. & D. 230.

2. The husband's income did not exceed £60; the wife had £70 in her possession when snit was brought. Alimony pendente lite was refused. - Coombs v. Coombs, Law Rep. 1 P. & D. 218.

3. The respondent had been ordered to pay permanent alimony at a certain rate, so long as he should receive a rent charge of £400 a year (his only source of income), the trustees of which had a discretionary power to refuse payment. The respondent had, before the order, become bankråpt; but the trustees had continued to pay him the rent-charge, and he had failed to comply with the order. Held (the respondent and trustees opposing), that a sequestration shonld issue in general terms against the property, &c., of the respondent.Clinton v. Clinton, Law Rep. 1 P. & D. 215.

4. In a separation deed, the husband corenanted with trustees to llow his wife £50 a year, he being indemnified against all liabili. ties on her account; and it being agreed, on her behalf, that she would not endeavour to compel the husband again to live with her, or to allow her any further maintenance or alimony than the annuity of £50. Held, that in the absence of any act showing an unqualified acceptance of the provisions of the deed, or of any attempt to enforce it against her husband, the court of equity would not, on interlocutory motion, restrain her from pro. ceeding to the divorce court to obtain an allow. ance for alimony, as incident to her petition for judicial separation on the ground of cruelty; but the court put her under an undertaking to deal with the alimony as it should direct.

Williams v. Baily, Law Rep. 2 Eq. 731. APPEAL.

1. On appeals, the appellant will begin.Williams v. Williams, Law Rep. 2 Ch. 15.

2. On appeal, any previous order in the cause may be read, but not evidence referred

was

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Digest of English Law Reports.

to in it, unless referred to in the order under

appeal.---Jenner v. Morris, Law Rep. 1 Ch. 603. ARBITRATOR.-See AWARD. ARREST.-See Practice, 3. ASSIGNMENT.

A. assigned to B. marginal receipts of a bank, representing deposits lodged in the bank till advice of payment of bills discounted by the bank. B. notified the bank of the assignment on the same day that A., who was largely indebted to the bank, suspended payment.Held, that, as against the bank, B. was entitled to the amount covered by the marginal receipts, subject only to a set-off of any sums actually due and payable by the bank to A. at the time when the receipts became payable on liabilities contracted before the bank had notice of the assignment.Jefryes v. Agra and Mas

terman's Bank, Law Rep. 2 Eq. 674.
ATTORNEY.-See SOLICITOR.
AUCTION.-See VENDOR AND PURCHASER, 1.
AWARD.

1. To an application for a stay of proceed. ings under the Common Law Procedure Act, 1864, sec, 11, on the ground that the instrument declared on provides, that, “if any difference should arise between the parties, either in principle or detail,” it shall be referred to arbitration, it is no answer that the difference is one of law as to the construction of the in. strument.--Randegger v. Holmes, Law Rep. 1 C. P. 679.

2. By an agreement under seal, it was stipulated, that, if any dispute should arise concerning the subject matter of the agreement, or the agreement itself, such dispute should be referred to such member of the firm of B. & Co. as that firm should appoint, in accordance with the Common Law Procedure Act, 1854. Dis. putes having arisen, B. & Co. appointed a member of their firm arbitrator, and he made his award. Held, that there was sufficient submission in writing to be made a rule of court under the Common Law Procedure Act, 1854, sec. 17. Re Willcox v. Storkey, Law Rep. 1 C. P. 671.

3. By charter-party between ship-owner and charterers, it was agreed, that, should any pute arise, it should be referred. The owner sued for freight, and the charterers preferred a cross claim for damages resulting from the captain's misconduct; and, being willing to refer all matters to arbitration, the court, at their request, stayed proceedings under the Comman Law Procedure Act, sec. 11.-Selig. mann v. Le Boutillier, Law Rep. I C. P. 6$1.

BAILMENT.— See BILL OF Ladixg. BILL OF LADING.

1. A. was indorsee of a bill of lading, drawn in a set of three, of cotton, which had been lately landed, under an entry by A. at a sufferance wharf, with a stop thereon for freight; on March 4, A. obtained from M. an advance on the deposit of two copies of the bill, M. assuming the third to be in the master's hands; on March 6, the stop for freight being then removed, A. obtained from B. an advance on the deposit of the third copy of the bill which A. had fraudulently retained. On March 11, B., knowing of M.'s prior advance, sent his copy of the bill to the wharf, and had the cotton transferred into his own name, and afterwards sold it, and received the proceeds. Held, that the bill of lading, when deposited with M., retained its full force, though the cotton had been landed and warehoused; and there was a valid pledge of the cotton to M., and he could sue B., either for conversion of the cotton, or for the proceeds of the sale.- Meyerstein v. Barber, Law Rep. 2 C. P. 38.

2. H. requested W. to purchase cotton for him in Wi's name. W. agreed, employing (with H.'s knowledge) as a broker, C., who knew that W. was an agent; and W. became liable on a series of contracts, the first of which was due Sept. 9. Cotton failing, C. refused to take up the contracts unless secured from loss; and, on Sept. 26, H. deposited with W., who deposited with C., a bill of lading of goods belonging to a foreign firm, of which H. was factor. On the same day, C. made a first payment on account of W.'s indebtedness, and continued to make payments. H. became in. solvent. Held, that the deposit of the bill of lading by H. was not made in respect to an antecedent debt of H. to W. within the meaning of the Factors' Act, and was binding on the foreign firm.-Jewan v. Whitworth, Law Rep. 2 Eq. 692. See FREIGHT, 1, 2; SHIP, 1; STOPPAGE IN

Transitu. Bills and Notes.-See CONTRACT, 1 ; PRACTICE, 2. BOUNDARY.-See DEED, 1. CAPITAL.- See SEPARATE ESTATE, CHARTER PARTY,

A charter-party provided that the ship should “ with all convenient spoed (on being ready), having liberty to take an outward cargo for owners' benefit direct, or on the way, proceed to E., and there load a full cargo.” This the freighters bound themselves to ship. The ship deviated to C., and arrived at E. a few days

dis

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