Carlisle Patriot, 13 Aug 1825 - Cumberland Summer Assizes (7)

[petra.mi...@doctors.org.uk]

Saturday 13 Aug 1825   (p. 2, col. 3 - p. 3, col. 5)

 

CUMBERLAND SUMMER ASSIZES.

 

[continued]

 

NISI PRIUS: MR. JUSTICE BAYLEY.

  

DONALD v. HODGSON AND ANOTHER.

 

Mr. TINDAL appeared for the plaintiff in this cause. It was an action of trespass, brought by the defendant against the plaintiff [sic - presumably the other way round?], who was overseer to the gaol of this city, and whose duty it was to give work to the prisoners, for which purpose stones were procured and broken, and then sold. The plaintiff rented certain lands of Mr. SOWERBY, which were situated on the banks of the river Caldew, which, he understood, was a very rapid and violent stream. To protect the lands on the banks of this river, tooks had been made, consisting of a projecting weiring filled up with large stones. He hoped he should prove to the jury that from 40 to 50 cart-loads in a week had been led; and that the sum of £200 had been received for the stones sold. (The learned gentleman here recited the act of Parliament at some length, making observations as he went on.) He knew not what reply the other party would make to this; but surely after the person had been discharged, they would not contend that he had a right to take stones which had been placed there. By bringing an action, £12 or £15 damages might be recovered for the injury which had been done to the close, by the carts coming day after day; but this action was not brought for damages, but merely to settle a matter of right.

 

David George DONALD sworn.—I am son of the plaintiff, who occupies land on the banks of the river Caldew, in the township of Cummersdale, and parish of St. Mary, Carlisle. The close they went upon is enclosed by hedges on every side, except on that next the river. The gate is in the hedge opposite the river. When they go from the gaol, they first cross the river, then go into a close of Mr. DIXON's, then cross the river again, pass a weir-head, and re-cross the river again in plaintiff's close; go along the whole length of it, and then into the river where they get the stones. They call the close Low Cummersdale Holme. We go to the close through other fields. The field is pasture; and they go where there is no carriage road. I have never seen either HILL or HODGSON take stones; but I have seen men gathering them. I never desired them to desist. I saw them first about two years ago; and I have seen three or four carts there at a time. My father has discharged them. The carts have been there nearly every morning for several weeks. My father discharged them in the latter part of last summer; but they took their load along with them, and came again. I have called upon the defendant on this subject, and requested him to withdraw his men from the place, as the damage they did was considerable. He said they were supported by the Turnpike Act. I asked him if there was any protection for taking them into the gaol, and there breaking and selling them. I said, unless he desisted, an action would be brought against him. He said the commissioners would protect him; and if they would not, the magistrates of the county would; he had their orders to get them. He called HILL his man; and said he was entitled to send him there; but he had not given him directions to go to that particular place. The surface of the ground had been cut as though it had been a carriage road. For nearly half a mile, the ground was deeply cut in the latter end of the year, and also in the spring, on account of the rain. When they cut one part, they then went upon another, and so made three or four tracts. It is excellent land; I am not a judge of it; but I think it might be let for 5l. or 6l. an acre. There are several jetties by the sides of the river: they are stakes driven into the ground, wound with hazel, and are generally called tooks; they project into the river nearly in the form of a horse-shoe; in the inside there are withers, or brushwood, which is covered with large cobble stones from the river; the water runs over them when high, and they protect the soil of the adjoining fields; they are absolutely necessary in the Caldew, from the state of the river. The jetties are on both sides of the river, within fifteen yards of each other; both sides are in possession of my father. It is enclosed land. I know the part of the river where they got the stones: they could have got them fifty yards from the tooks. I can't say if any stones were taken from the tooks; I never missed any.

 

Cross-examined by Mr. ALDERSON.—I never heard them called jetties before this action; in floods, they are under water. When I gave Mr. HODGSON a notice, I might probably call them weirs. I had this conversation with Mr. HODGSON about his man on the 29th of September, 1824. He told me he had not ordered HILL to go to any particular place. They have also got stones from Mr. DIXON's land: he has not brought an action that I know of. My father occupies land on both sides of the river for a quarter of a mile where the stones were got. There is a public foot-path in the close. I can't say if the carts could have come up the bed of the river. HODGSON has told me to let my father bring in a bill; it would be laid before the Commissioners, and they would pay it if reasonable.

 

Reginald ARMSTRONG.—I am a labourer for the Plaintiff. I have seen two or three of HILL's carts on the premises at a time. I have seen Wm. HILL there with his carts; it is above a year since I first saw him; and he told me he took the stones to the gaol. He also said Mr. Christopher HODGSON employed him.

 

Cross-examined by Mr. PARK.—I have seen him with two or three carts in the month of August; I think it was not in the month of June, but I am not positive.

 

John DALTON.—I saw HILL's carts taking stones from the middle of the Holme, about 5 or 6 yards from the tooks. The water in the river might be two feet deep; so that they could not, I should think, get them from the bottom of the river.

 

Cross-examined.—I don't recollect the exact time I saw HILL. He was on the west side of the river; but it was from Mr. SOWERBY's land. I suppose Mr. HODGSON was surveyor of the roads at that time.

 

John JOHNSON sworn.—I recollect being employed in a field adjoining. I have seen a man getting stones two years ago last March. I did not know it was HILL; but I was told so.

 

 

[to be continued]