Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (24)

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

Saturday 20 Aug 1825   (p. 3, col. 1-3)

 

CUMBERLAND SUMMER ASSIZES.

  

NISI PRIUS: MR. BARON HULLOCK.

  

GRAHAM, CLERK, v. GRAHAM.

 

[continued]

 

Thomas WANNOP.—I am the owner of a considerable estate in the manor of Wetheral, and of other property. I know Eveningfold; it is a very ancient inclosure; the fences of all the ground round about appear to be of the same kind—no man, looking at them, could think that the Evening-close was a modern inclosure. The custom of the manor is, that the ditch belongs to the field adjoining, and not to the fence. I saw the tree before it was felled. In my judgment, it belonged to the defendant, because the principal part of it grew in his land; the centre of the tree is decidedly in the ditch, decayed as the fence is, for it is much widened beyond what it ought to be from a want of being thrown up. The tree is above three feet from the nearest growers, which are hazel bushes. I saw an experiment made with a line. We placed one end of it at the side of the hedge at a part of it where it exists in its original state, and carried it over the top of the tree to another part that appeared to be most perfect, and more than two-thirds of the tree were left in the ditch.

 

Cross-examined.—I know Boontown: the custom is the same there as in other parts of the manor, as far as I am aware.

 

Wm. SUTTON.—I live in the parish of Wetheral, and have seen the place were [sic] the tree was cut down. In my opinion, it stands in the defendant's field. The centre of it is several inches from the base of the mound. I saw it last night only—it is manifestly in the ditch.

 

By Mr. BROUGHAM.—If the mound had been properly repaired, the sapling would have been a foot from the hedge. I consider the tree about 64 years old; I think I know its age, and any man may know it, by the number of rings, or years' growth, counting them from the centre. (Mr. BROUGHAM expressed some scepticism as to this doctrine.)

 

Michael COLLINS.—I have an estate in Wetheral, and have lived there all my life. Throughout the manor, not a ditch belongs to the hedge. This I have often heard from old persons. (Witness related an instant of his uncle having made a hedge and a ditch on his own land, allowing two sods for the latter, which ditch, for want of usage, now no longer belongs to the hedge, the general custom having prevailed over Mr. COLLINS's particular right, he possessing the property.)—On one occasion the father of the plaintiff went with me to see a disputed tree, and recommended that it should be divided on account of its being partly in the fence, and partly in the ditch; for he was a man more inclined to settle a dispute than to make one. (A laugh.) I was one of the manor jury who gave the defendant this tree; its value might be about 50s.; that which we gave to the parson was worth £5.—Mr. COLLINS also described the experiment with the tape-line, and another with a chain, bearing witness to the result stated by Mr. WANNOP.

 

Thomas STRONG had lived in Wetheral three years: he saw the tree, and certainly thought it in the ditch.

 

Mr. BROUGHAM addressed the jury at great length, and with much energy, for the defendant [sic - should be plaintiff]. He could not help feeling, in a case of this kind, that a party who came last with a heavy body of evidence, had an advantage with the jury, for what was last heard produced the greatest impression. He went on to analyze the evidence, and contended that, in spite of the defendant's testimony, in spite of the Wetheral jury, in spite of the opinion of that fast-talking gentleman, Mr. Michael COLLINS, or of the positive assertions and tape and chain of Mr. Thomas WANNOP, who could not tell him in what degree of relationship he stood to his own aunt's grandmother (a laugh)—in spite of all this, and of all the rest that the jury had heard, the tree was clearly in the mound, and belonged to the plaintiff, who came there, not as his learned friend had asserted, to punish or to oppress, but to maintain his invaded rights, to recover his property that had been cut down and carried off, for if he had submitted on this occasion, he would have more injustice of the same kind to endure in time to come.

 

Mr. SCARLETT handed up to his Lordship an opinion of Mr. Justice BULLER, on a case in point, which he said had been furnished him by Mr. Sergeant CROSS. It was not read aloud.

 

Mr. Baron HULLOCK, in summing up, lamented that the action should have come into court, before a jury, when any individual could have decided it much more satisfactorily. Yet, though he might lament this, and express his regret, he had no right to complain of it, for the plaintiff, if he chose, was entitled to have his case set at rest by a jury. The whole question turned on the property of the ditch. They would first have to decide if the ditch belonged to the defendant—if so, and they believed the tree in it, their verdict must be for the defendant. They would remark that there was no evidence to contradict that on the custom, though the plaintiff must have been perfectly aware that such would be produced by the defendant.

 

The jury retired, and after an absence of more than an hour, returned with a verdict for the Defendant.

 

 

[to be continued]