A Gardeners claim to a peerage.

In the matter of the legitimacy declaration act, 1858:

George Beresford (Sometimes known as George Tooth) v. The Attorney General (Marquess of Waterford and others cited)

(Before Lord Justice Swinden Easy, Lord Justice Warrington, and Lord Justice Scrutton.)

In this case the parties cited, namely, the Marquess of Waterford and the trustees of the Waterford family estates, appealed against orders of Mr. Justice Horridge, in chambers, that Priscilla White and Emma Vivian should be re-examined, and they asked for an order that the depositions of Priscilla White and Emma Vivian, taken in the action to perpetuate testimony of Anson and another v. Tooth and another in the Chancery Division might be read and used as evidence in the present action, and that the attendance of such witnesses should be dispensed with.

There was a cross-appeal by the plaintiff asking to have the evidence taken in Court.

The action was brought by the plaintiff under the Legitimacy Declaration Act 1858 seeking to establish that he was the son of the fifth Marquess of Waterford by his wife Florence Grosvenor, Marchioness of Waterford.

Mr. Hume-Williams. K. C. Mr. Ashworth James, and Mr. Bayford appeared for the appellants; Mr. Colam, K. C. and Mr. A Carnes for the plaintiff; and Mr. Pilcher for the Attorney General.

Mr. Hume-Williams in opening the appeal, said that the plaintiff was a gardener, who claimed to be the son of the fifth Marquess of Waterford. The defendants case was that on March 27, 1873, the wife of the fifth Marquess of Waterford had a still born child. Lady Waterford died on April 4, 1873 and the mother and child were buried toge6ther. Lady Waterford had a cook whose sister had got into trouble shortly before this, and had an illegitimate child at a workhouse. Lady Waterford, out of sympathy, had taken the child from the workhouse and had it educated and Lord Waterford continued to do so afterwards.

The plaintiffs case was that he was the child alleged to have been stillborn. The plaintiff had begun to make these statements about 1893. Later as the only people who knew anything about the matter were getting old, and it was feared that they would die, and action was commenced to perpetual testimony. The chief witness was Mrs. Priscilla White, who was in 1873 Mrs. Priscilla Kynaston, and was then a maid companion to Lady Waterford, and had been instrumental in taking the child out of the workhouse; and Mrs. Vivian, who was then called Mrs. Price, and was a personal friend of Lady Waterford, and was with her at the material dates.

On January 10, 1913, an order was made for the examination of the witnesses in London before on of the examiners of the Court. They were examined in July, 1913, and as the plaintiff then claimed to be without means, the costs of one counsel were borne by the then applicants to enable the plaintiff to have the witnesses  cross examined. It was material to this case to know what happened after this. On March 31, 1914, the present plaintiff began an action for slander again Mrs. White for having stated that he was not the Marquess of Waterford. This case went to the Court of Appeal, and was ultimately dismissed, with costs; these costs had never been paid.

Abusive Post Cards

On the very day that the appeal was dismissed the plaintiff began to send abusive and scurrilous letters and post cards to Mrs. White. Then On June 15 1914 he sent three post cards to her, in which he charged her with being a lair and a party to a conspiracy against him, and a murderess; and ultimately an order was made for the plaintiffs arrest on a charge of criminal libel, and he was tried at the Old Bailey. The plaintiff then pleaded guilty, and counsel on behalf of the plaintiff apologized and withdrew the charge of murder. The plaintiff was then bound over to keep the peace.

It was not until January 1917, that the present action was begun. Thereupon an application was made by the defendants to Mr. Justice Eve to publish the evidence given in the suit to perpetuate testimony, and Mr. Justice Eve gave leave to publish the evidence, but added that he did so without prejudice to any question whether the evidence was admissible.

The appellants now contended that this evidence ought to be allowed to be used at the trial of this action, which was pending in the Probate, Divorce and Admiralty Division. It was true that the witnesses were not dead, but they were quite unable to travel. As evidence had already been taken on commission, what object could there be in again taking it on commission? Further it was most objectionable that the plaintiff, having seen all the evidence given by those witnesses should have another opportunity of cross examining the. Both the witnesses were old, and after the attacks that Mrs. White had been subjected to she was naturally unwilling to give evidence again with the probability that she would again be subjected to systematic abuse and scurrilous attacks.

Counsel then referred to the affidavits made on the application to publish the evidence taken in the action to perpetuate testimony and he referred to Biddulph v. Lord Camoys.

Mr. Ashworth James, following on the same side said that the difficulty felt by the learned Judge was that there was no rule in matrimonial causes corresponding to Order 37, Rule 18, and he felt that as he could no say that the witnesses could not attend somewhere, though not in Court, to give evidence, he must reluctantly give an order for them to be examined over again.

Lord Justice Swinden Eady, said that the real question was whether, when evidence had been taken in an action to perpetuate testimony and published an order out to be made for it to be taken again in this respect.

In this case, Mr. Justice Eve in ordering publication had carefully reserved the right of the Judge trying the case to decide how the trial should be conducted and what evidence should be admitted. The common form of the order for publication was that the parties should be entitled to use the evidence 'as by law they can'. It was necessary to see what the position was at law. He submitted that at law depositions given in another suit could not be used, when the witnesses were alive and could be examined, in the existing suit, because it was necessary that at a trial the best possible evidence should be obtained.

It that were so, the only remaining question here was whether the Judge could allow the evidence to be taken on commission. He submitted that there was no sufficient evidence to enable the learned Judge to dispense with the attendance of the witnesses in open Court. The question arose on the plaintiffs cross appeal, and he did not desire to press that unduly, provided that he was at any rate given an opportunity of cross-examining these witnesses. It was vital to the plaintiff here to break down the evidence of Mrs. White, and it was remarkable unless the ill heath of Mrs. White was really the casue, that the appellants here should be so anxious to prevent this lady from giving her evidence in the suit. The law ought not to allow the plaintiff to be shut out from having this witness cross examined on the information which he had now been able to collect.

Lord Justice Swinden Easy said that in Biddulph v. Lord Camoys (supra) it was pointed out that the parties might have the benefit of the evidence given in a suit to perpetuate testimony when the witness, although alive, was prevented from attending to give evidence viva voce to open Court.

The Colam said that that case only had reference to the publication of the evidence; it did not decide that the dispositions were admissible in the new action.

Mr. Cairns allowed the appeal of the parties cited, and made the order asked for by them.

Judgement

Lord Justice Swinden Eady said that the claimant claimed to be the sixth Marquess of Waterford, and the eldest son of the fifth marquess, and he alleged that he was born at the end of March 1873, and was the lawful issue of Florence Grosvenor, the then Marchioness of Waterford. The firth marquess died on October 23, 1895, and the claimant, if born in 1873 would then be 22 or 23 years of age, but although he alleged that he was the sixth marquess no proceedings were taken to establish his title either to the position or the estates. The sixth marquess died in 1911 and the present marquess was an infant and one of the parties cited.

The parties cited wholly disputed the allegation that the plaintiff was the son of the firth marquess and said that he was the son of one Georgina Tooth, who was a sister of the cook to the marchioness, that he was born in 1872, that his name was George or John Tooth, and that he was a gardener.

The claimant not having taken any proceedings to establish his claim, proceedings were brought in 1913 to perpetuate testimony, and the evidence of Mrs. White and Mrs. Vivian was taken. Mrs. White's evidence was of the utmost importance, as according to her evidence she was present when the marchioness was confined, and she said that the child died and was buried. The evidence of Mrs. Vivian was also material. It seemed that after the evidence was of the utmost importance, as according to her evidence had been given the claimant, feeling very apprised with the evidence, conducted a series of attacks on Mrs. White. At first sight it appeared that this was a matter only of prejudice, but the way in which it became relevant was that it appeared that these attacks had had an injurious effect on Mrs. Whites health. In the result proceedings had to be brought on a criminal information for libel to stop these attacks, and the claimant was bound over for 12 months, with an alternative of six months imprisonment.

His Lordship then examined the medical evidence with regard to Mrs. White and Mrs. Vivian, and continuing said that, in his judgement, the evidence clearly established that neither of them would be able to attend at the trial of the case.

An application was made before Mr. Justice Eve, that he would direct publication of their depositions and learned Judge, in an order of July 6, 1917 directed the publication, but without prejudice to any questions of the admissibly of the depositions in evidence in this suit.

The Settled Practice

His Lordship said that he would observe that the settled practise was that no order for publication should be made unless it was proved to the satisfaction of the Court that the witness were dead or so ill or otherwise incapacitated as to be unable to attend at the trial. In Morrison v. Arnold which was a case of this kind Lord Eldon said:-

After considerable research, there is not a single instance except of a person sick, incapable of travelling, or prevented by accident' all the orders but in those expected cases, stating that the witness is dead'.

    Biddulph v. Lord Camoys, was to the same effect and in the case of Bawsdale v. Lowe publication was refused, although all the parties consented to it.

It was not material to consider Mr. Justice Eves order beyond noting the fact that the depositions were published. His Lordship said he approached as a separate question whether the dispositions were published. His Lordship said he approached as a separate question the  question whether the depositions ought to be used in these proceedings. The evidence was that, owing to their advanced age and infirmities, the witnesses were unable to attend. That being so, the case was brought within the rules, and the Court of Appeal ought now to make the order asked for by the summons of the parties cited.

The other Lords Justices gave judgment to the same effect.

Solicitors - Messrs. Farrer and Co; Mr. F. H. Adams; the Treasury Solicitor.

News of the World March 3rd 1915 

The Times 30th January 1918 

The Times January 31st 1918 

The Times 1st February 1918 

Times Editorial February 2nd 1918 

The Times February 2nd 1918 

The Times Law Report February 26th 1919 

The Times A Solicitors Bill February 27th 1919 

Ada Gertrude Hudgell 

George Tooth