The Stourbridge Observer, Cradley Heath, Halesowen & District Chronicle.
Stourbridge, West Midlands, England, 1872-05-11 00:00:00

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THE TICHBORNE CASE.

in the Court of Common Pleas, on Friday In last week,
the cake of "Tit:llll°nm v. Mostyn "was heard before Lord
Ckief Justize Bovill, and Justices Bytes, Brett, and Grove..

In this case Mr. 'Hawkins, Q C with whom were Mr.
Matthew., Q.C., and Mr. Purcell at the sitting of the Court
on liehal of the tif feudants, moved fur an order calling on
the plaintiff to pay the costs of the action ."fichborne v.
Lushiugton" before being allowed to proceed to trial in this
action. Mr. Gifford, (IC., showed cause in the first instance.

. .
It appeared from the statement of the learned I
counsel alai of the affidavits on which he moved that ;
the plaintiff in the present action was the same as in '
the action " Tichborne a. Lushington ; " that the de-
fendants were substantially the same—they were the '
trustees of the Doughty estate for the infant heir who
was the heir to the Tichborne estates in the former I
action ; the title to both estates was the same I
and the issue in both cases was the salue—whe- ‘,
tiler the plaintiff was Sir Roger Charles Tichborne. ,
The defendants in the last Case had succeeded, and had
been put to great expense in defending the former '
action, the taxed costs being stated in one of the affi-
davits to be over £40,000. and that would probably
mean costs altogether amounting to £70,000. He now
moved, in accordance with the authorities, that before
the plaintiff be permitted to try the same question
over again he be ordered to pay the taxed costs of the
former trial. Under the :102nd section of the Com-
mon Law Procedure Act, 1851, the defendants had
given the Claimant '2O days' notice to proceed to trial
at the next sittings after Term.
Mr. Gillen' showed eituse on the ground—first, that
the parties in this action were not the same as in the :
; last action. The defendants, as trustees, were trustees
for other interests, as well as for the infant heir. He
also contended that the ciremnstauces under which the
verdict was found, on evidence that Roger C. Tiehborne
had been tattooed and that the Claimant was not, were
a surprise on the Claimant ; no notice of such a de-
fence having been given. The Claimant had never
been asked if Lord Bellew had not tattooed him; and
the evidence on the matter given by Dr. Lipscombe
and the questions asked of him were for the purpose
of corroborating the Claimant that be had not been
tattooed, and not for the purpose of contradicting
him; and the questions put to the Claimant himself in
cross-examination whether he had ever been tattooed,
I rather pointed to him as Arthur Orton, who, it was
' said, hadibeen tattooed. The defence on whiehthe verdict
had been obtained had been kept dark, and had been
unfairly sprung upon the Claimant as a surprise; and
the circumstances were such that the learned counsel
contended he would have been entitled to have moved
for a new trial on the ground of surprise. Seven or
eight witnesses were called to prove tattoo marks on
Roger C. Tichborne, the fact of his having been
tattooed not having been previously raised, so as to
give the Claimant notice that this was a material ques-
tion to be tried ; and in this way the minds of the jury
had been brought to a conclusion against him. If. in
the course of the trial, this question had been raised,
it might have been asked of some of the 80 witnesses
called for the plaintiff, who knew him well, whether
they had ever seen any tattoo marks on Roger C. 'rich.
borne's arm, that being denied by the plaintiff. Their
evidence, if recalled, as to that one fact would have
lost most of its weight, and it would nearly have
doubled the Claimant'a costs. The Claimant had,
therefore, elected to be nonsuited, and to try his case
in another action. The defendants could not complain
now if the question of the tattoo marks was to be
tried. They had got the verdict by this course of pro-
cedure on a point which had never been put to the
plaintiff's witnesses.
Mr. Hawkins, in reply, was surprised to, hear his
friend resist this rule on the ground of surprise. Why
did he not produce some affidavit of some one who had
seen the arm of Roger Charles Tiehborne, and who
could swear that there were no tattoo marks on it?
There was abundant notice to the Claimant of the
questions to be raised, and Dr. Lipscombe had been
asked by Mr. Serjeant Ballantine whether he was not
under an impression that there was some sort of mark
on his arm, and he was asked what sort of a mark. He
said, "The mark was an initial, as impressed on my
mind, particularly of its being very badly done. I got
it into my head from one of the family mentioning it."
On cross-examination he said he had told Mr. Bowker
that the mark was "11. C. T.," with a cable or some
device over it--a device of a ship and a mermaid.
Mr. Giffard : I thought the device spoken of was
"Faith, Hope, and Charity."
; Mr. Hawkins: A very fishy representation of Faith,
Hope, and Charity, for the witneas remarked bethought
it must have been done by a man, a very bad hand at
; it, or drunk. How could it be said after this evidence
' that there was no intimation of the defence, and that
the Claimant was altogether ignorant of it. Besides,
Moore and Boyle might have been recalled and asked
the question whether Roger Charles Tichboine was
; tattooed. There was also ample ground to justify the
' jury in arriving at the conclusion they had done with-
out the tattoo marks. His learned friend had been in-
structed to make this statement of surprise with a view
' of aiding the money-box. (A laugh.) The defendants
had here been put to £70,000, or probably £lOO,OOO,
expense, and were they again to be put to similar ex-
pense to try the same action?
Mr. Giffard said there was nothing about £lOO,OOO
in the affidavits. His friend must have been instructed

....... .._.____ ....____
to make that statement for the newspapers. (A laugh.)
Mr. Hawkins proceeded to contend that on the notes
of evidence Mr. Serjeant Ballantine gave up the case
on the understanding that the jury had made up their
minds on the whole case, and not on the tattoo inarkii.
Mr. Justiee Grove: Suppose that when the ques-
tions were asked about the tattoo marks during the
plaintiff's case that it hail been in the mind of Serjeant
Ballantine that Orton had got a tattoo mark on his
arm, then the question put to the Claimant and other
witnesses about tattoo m irks would appear to have re-
ference rather to Orton than to Tichborne, and would
not be notice of the defence to him.
Mr. Hawkins said he could not assume that.
. . .

Mr. Justice Grove : You have given the claimant
notice to proceed with his action, and he obeys the
notice ; and now you ask for an order that he be not
allowed to proceed until he has p tid the costs of the for-
mer action ; and if the order should be granted do
you say that under the 202.1 section of the Common
Law Procedure Act you have a right to sipi judgment
when the cause is called on in few days if he has not
paid the costs ordered? If you maintain that, I should
hesitate before agreeing to make the order.
Mr. Hawkins contended that he was entitled to give
the Claimant notice to proceed to trial, and also to in-
sist on the costs of the former trial being paid.
Mr. athews was heard on the same side.
The Chief Justice, in giving judgment, asid it was
perfectly plain, upon the affidavits and on the state-
ments of conneel, that the aAions at issue were the
same. The plaintiff was the same in both cases; the
question to be tried was the name in both—namely,
whether the plaintiff was or was not Sr Boger Charles
Tichborne. Both actions were brought against the
tenant in possession to try the title-to the estate. Sub-
stantially in each case the defendant was same and the
question involved was precisely the SAM* The last
actirn had been tried during a period of over 100 slave,
and at the conclusion of the 1031 day the jnry had inti-
mated their opinion on the case. The jury said, "We
have now heardthe evidence regarding the tattoo marks
and, subject to your Lordship's dinietions, the jury do
not require any further evidence." Open this, at the
request of Serjeant Ballantine, there was an adjourn
ment. On the Court reassembling after the adjourn.
ment, the learned counsel for the plaintiff referred to
the tattooing and, supposing the jury to be governed
by that evidence and not by the general evidence. he