Carlisle Patriot, 23 Jul 1825 - Cumberland County Sessions (12)

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Saturday 23 Jul 1825   (p. 4, col. 1-3)

 

CUMBERLAND MIDSUMMER SESSIONS.

  

THE KING v. INHABITANTS OF DALSTON.

 

[continued]

 

Mr. AGLIONBY addressed the jury for the defendants. The case, he said, was more painful and difficult to him than any he had ever been engaged in—painful, because he should find it necessary to occupy a great deal of time,—difficult, because, though he felt in his conscience he had right on his side, the peculiarities of the case rendered it doubtful whether he should be able so fully to explain the complication of circumstances as to render justice to his clients. The disputes of the parties had existed for more than a hundred years,—in the course of that time all ordinary rules had been set aside; acquiescence and usage were almost inextricably confounded—here were the great difficulties that he had to contend with. He had also to complain of a breach of faith on the part of the prosecutors. What had been done for the public accommodation they overlooked and rejected; they seized the efforts made in the service of the public and turned them to their own advantage; for the Jury would see that the whole affair was one of private accommodation and interest. Mr. HEBSON had a factory near the bridge, which was now rented by Messrs. COWEN, and to them alone was the bridge of any essential service. Look at the situation of the bridge. Before it could be got at you have to cross the main channel of the river, and in a flood you can't get to it at all—and at no time but by planks—by whom laid?—why by Mr. HEBSON and Messrs. COWEN for the convenience of their servants, and not for the public at large, in whose name they now come and demand a repair. It had been proved that there was at present no water in the bed of the river. This was occasioned by Messrs. HEBSON and COWEN's dam; and having carried the water to that dam for their own purposes, they come, forsooth, to ask the public to give them a bridge over it. The learned gentleman dwelt at great length on this point, and insisted that when there is no flood the bridge is not wanted; that when there is a flood, the bridge cannot be approached, and is useless unless extended in five or six times its present length. He quoted the King v. the Inhabitants of Yorkshire to shew that when a person carried water across a road for his own purposes, he was bound, in the first instance, to build a bridge across it. If in this case, the backwater went under the bridge, it was entirely for Messrs. COWEN's use, and therefore they ought to repair it. He was not instructed to say that the County was liable. Prima facie it was so; and if he succeeded in throwing the liability off the parish, the county assumed the burthen by operation of law. His defence to the indictment was this. The parish of Dalston, as the Jury had heard, was separated into two divisions, each of which maintained its own bridges, notwithstanding a few slight deviations arising out of irregularity: and though one half could not gain a verdict upon this indictment, the whole parish might show that one division is liable, or one half might show that what is demanded of them belongs to the other. The poor-rates were collected in separate townships for the benefit of the whole. When the New Union Bridge was built, it was intended by the whole parish that both Dalston and the old Hawksdale bridges should be done away. His friend would say that such an agreement was not binding. He (Mr. A.) did not contend that it was. But that was the end and aim of the new bridge, and what conscience was there in now coming into Court with this indictment? Observe the name: "New Union Bridge." As much as to say, now both join by consent; it was therefore unfortunately built by rates laid on on purpose, without apprehension of such a breach of faith as was this day witnessed. It was only 300 yards about: a most excellent stone bridge, fit for carriages, horses and carts, and at all times accessible. This admirable convenience, an honour to the parish, they won't use, but contend for the trumpery fabric now under discussion. If they should gain their object now, they would next come into Court and demand a restoration of the old Hawksdale Bridge, and must succeed upon the same evidence, and in spite of the conventional "New Union." He then analyzed the sessions records, and argued against their being considered conclusive evidence of liability, to the same effect as his preliminary objections. In these days, no such minute could find entrance into the Clerk of the Peace's books, because the Court, as a Bench, could not try a question between two divisions of a parish. The petition spoken of might have been presented by an inhabitant of the County, who wished to make evidence in order to saddle the parish hereafter! To show that such division of the parish was liable to its own expenses, he would now read the award or agreement between the parties, of which his learned friend had expressed so much natural apprehension.——

 

Mr. COURTENAY interposed. He submitted that an agreement between the parties could not be put in. He resisted on the strongest grounds. If it was even an agreement between the parish and the county, it was unjust, for no individual could damage the public right. But here is an agreement between themselves—the parties to this suit—the defendants of this indictment—and they surely could not make evidence for their own benefit.

 

Mr. AGLIONBY.—I put in the agreement, not as binding, but as evidence of reputation and belief. The award would be binding upon two parishes, not in respect to obligation to each with the other; but if an indictment should be preferred, then it would be evidence of the state of feeling. I tender it on the authority of the late Lord Ellenborough, when Mr. LAW, and Mr. RICHARDSON, now Mr. Justice RICHARDSON, as an ancient document, tending to shew, as I have said, reputation and feeling at the time of its execution.

 

Mr. COURTENAY.—It is not receivable upon the general principle. First, no agreement between parties can abrogate the law of the land. Secondly, I am here for a public right, and is it to be endured that these defendants should manufacture evidence for themselves? The bench will see for itself, and not adopt the opinion of any man, whether my Lord Ellenborough or Mr. RICHARDSON, if these lawyers were wrong.

 

The question was put to the vote, and the Bench decided that the award was not evidence.

 

Mr. AGLIONBY continued his address.—If they paid money for these bridges out of the poor-rate, as stated on the books, they committed a great injustice on the poor, and acted illegally. His learned friend, he observed, was very dull at his speech. He would read an item from the poor-rate expenditure that would awaken him, and astonish him. "Tobacco and pipes, 7d.; ale, 1s." (A laugh.) They were very liberal to the poor at that period (about 50 years ago), as well as liberal in bridge-expenditure. But these things were illegal, and must not be construed as binding upon the inhabitants generally, because they could not have known of them; they were evidently smuggled upon the books.—He went on at considerable length, with a view to throw discredit upon the documentary testimony. There could be no doubt of the parties coming next sessions to indict Hawksdale Bridge, if they gained a verdict on this occasion. He confidently expected, however, that the jury would give him a verdict on the ground that each division was liable to maintain their own bridges, according to the reason of the thing. They must not consider who would be ultimately liable: that was no part of the question; and he called upon them to acquit the parish. He did not intend to examine any witnesses.

 

The Chairman made some appropriate remarks on the case, but the Jury would not trouble him to go through the evidence. It appeared to him to be clearly proved, that, from 1723 to 1821, the parish at large repaired the bridges. He thought the bill found in 1810 almost conclusive. At any rate, the county was not liable.

 

The jury, after a very short consultation, returned a verdict of Guilty, and thus the parish will have to repair and keep up the bridge.

 

We understand that the award attempted to be put in, was kept back when Hawksdale Bridge was indicted in 1810, by the same parties who now produced it. It was agreed to between the two divisions of the parish in 1745, each party undertaking to keep up their respective bridges; but, as the result has shown, it cannot be made a legal document in any matter wherein the public right is at stake.