Carlisle Patriot, 10 Sep 1825 - Arbitration Cause - LOWDEN v. NIXSON (8)

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Saturday 10 Sep 1825   (p. 2, col. 5 - p. 3, col. 6)

 

IMPORTANT ARBITRATION CAUSE.

LOWDEN v. NIXSON.

 

[continued]

 

James CREIGHTON and John THOMPSON, master carpenters of Carlisle, examined together.—Mr. CREIGHTON answered:—I have looked at the buildings at Hayclose. The water had got into the dining and drawing rooms, principally between the wood and stone work of the windows; it would follow the walls, and when it got to the joists, run along them, and so on to the ceiling. Putty or thick paint in the crevices would have cured the defect, and white-washing would have put the ceiling to rights. The shrink in the drawing-room was occaisoned [sic] by dry rot in the joists. There seemed to me enough timber in the building, and the wood was as well seasoned as could be expected. In 1819, American timber only was used. The way in which the roofs are framed is the best. The front wall, though out of line, does not appear to have shrunk. I think there is no doubt of the building standing. I have built many houses in the same way. Baltic timber would have cost £2 12s. 6d. per square in 1819.

 

Cross-examined.—I recommended veranda shutters to Mr. LOWDEN. I saw no fault in the shutters; I did not examine so as to discover any flaws. The beam in the dairy I tried with a penknife, and it did not penetrate far. I did not tell Mr. LOWDEN, when I recommended the veranda shutters, that the job was a bad one altogether, and could not be remedied.

 

John THOMPSON generally assented to what Mr. CREIGHTON said: but in answer to some questions by Mr. AGLIONBY, he admitted that he had seen better and worse work. Baltic timber is the best material. If the old oak was given over, it would make a great difference. Certainly Baltic fir and oak are the "best materials."

 

By Mr. HODGSON.—But if £393 had been charged for old materials that would also have made a great difference. If I had looked at the specification, without seeing the agreement about "best materials," I should have used American.

 

Mr. DENTON.—The addition to the barn would cost about £23—150 yards at 3s. The width in the specification was much too little for a barn belonging to such a large farm.

 

This closed the defendant's case. A few more papers were put in to Mr. LOSH, and

 

Mr. AGLIONBY replied for Mr. LOWDEN in a speech which occupied nearly an hour in the delivery.—He began by observing that it was first necessary to apologise for the very great length to which this case had extended; and perhaps it might be deemed superfluous on his part to urge one word more on the subject, after the very conclusive evidence that he had adduced, and also extracted even from the defendant's witnesses, were it not that there was something peculiar in two or three points of the testimony for the defence. And in making a few remarks he could not help expressing the great gratification that he felt in having, instead of a jury, to address a gentleman capable of forming the most correct judgment both upon the facts and nature of the case; a gentleman who had seen the premises, had attended to all that had been urged with most anxious attention, and whose knowledge and impartiality were not only guarantees of a just decision, but assured him (Mr. A.) that however deficient he might prove himself in the discharge of his duty, the arbitrator, holding the scales of justice with an even hand, would give the preponderance only where justice required it to be given. Mr. HODGSON, in his speech, had hinted that Mr. NIXSON had to deal in this case with a London attorney, a sharp customer. Certainly, attorneys were in general sufficiently sharp, and they need be so; Mr. LOWDEN, however, was not now an attorney, managing his own case, but a Country Gentleman—a man who reposed so much confidence in Mr. NIXSON, that, from first to last, he never came near the buildings (notwithstanding the random assertion of DUNLAP), as was well known to many, and proved by Mr. CONNELL. This did not look like extraordinary sharpness. But who was Mr. NIXSON? Why a member of a profession who have the comforts and interests of the community much in their power—a man of talent, evidently, but in this instance guilty of great neglect, to say the least of it; and Mr. LOWDEN, instead of censure, deserved the thanks of the public at large, for the manly and spirited manner in which he had come forward to assert his right, in which were more or less involved the interests of every man who erected a wall or built a house. Little did Mr. LOWDEN think, when in his confidence in Mr. NIXSON, he paid the money at £200 a month, that the foundations of his house were defective. Little did he think that another part overhung six inches. Little did he think that another part was without morter—the morter itself bad, and the whole such as no workman ought to be guilty of. This did not very much look like a sharp eye and tight hand. Mr. HODGSON had said that he (Mr. A.) had failed in calling several witnesses who were best able to give a proper account. It was true that he did not call Mr. CONNELL and the workmen. It was not for him to call these persons to show what had been done. The most material witness omitted was GASH, and he had not been called for an obvious reason. He was highly interested—he was the person to whom Mr. NIXSON had sub-let; he was responsible to Mr. NIXSON; and would therefore naturally come into Court in his own cause. Whether he can pay or not is another question, and one that cuts both ways—for if he is not a respectable man, if a man of straw, Mr. NIXSON should not have entrusted him with so important an undertaking; and he was guilty of great neglect, to use no harsher term, in not looking after him, for it was in evidence that he was only on the spot twice during the progress of the works. GASH, however, was a very improper witness; if he had been called for the defence, he (Mr. A.) would have objected to him; and he thought Mr. LOWDEN perfectly in the right in not suffering him to be examined at Hesket, without a release. Mr. AGLIONBY analysed the evidence, and contrasted one part with another. He contended that he had seldom seen better witnesses for any case, than Mr. NIXSON's had proved for Mr. LOWDEN. To be sure there were two persons among them, who resorted to the most dangerous of all expedients, that of proving too much. They would wish to be credited when they said that the walls were good, the roofs good, the morter good, that the house was no worse for being out of the perpendicular, and that none but an unreasonable person would find fault. This was what they would fain have believed; but it was outrageous; and it fortunately happened that the arbitrator, having seen the premises, could himself contradict them. If this were correct, why did the defendant submit to an absolute verdict against him at the assizes? If this were correct, Mr. LOWDEN must be in Mr. NIXSON's debt, and had the case gone to a jury, the defendant must have had a verdict, and damages likewise. But no, it was not true, and Mr. NIXSON knew better than to rely on such testimony.—Mr. AGLIONBY proceeded with his analyzation, but we have no room to follow him minutely. Look at all the defects he had enumerated—at the rotten beam in the dairy—at the flagged parlour—bad slating—no water—yet these were but minor points of the great question. The only difficulty in the mind of the arbitrator could be simply the amount of compensation. "We cannot expect (said he) that you, sir, should punish Mr. NIXSON; we only expect you to do justice between the parties as far as circumstances admit; but whatever may be your decision, my client is pretty sure of being some hundreds out of pocket, to say nothing of his anxiety, trouble, and inconvenience. But in regard to the amount, I think you have a tolerably sure guide in the evidence of Mr. PARNELL, Mr. PROCTOR, Mr. RANDLESON, and Mr. SANDERSON, men well skilled, respectable, fully capable of judging; and they fix the actual damage at £900 or £1000, exclusive of £250 for further loss and inconvenience before new buildings can be erected; for Mr. LOWDEN must of course quit the premises for a year, and whether he take another house in Carlisle or London, enter upon lodgings, or send his servants to board at the inn in Hesket, in either case the £250 will surely be considered as little as he can in justice have."

 

 

[to be continued]