Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (30)

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

Saturday 20 Aug 1825   (p. 4, col. 1-5)

 

CUMBERLAND SUMMER ASSIZES

 

[continued]

 

WINDER v. FEARON, EXOR. &c.

 

Mr. SCARLETT.—This was an action brought by Mr. WINDER against Mr. FEARON upon a covenant. The plaintiff and defendant's father were possessed of certain fields, and they agreed to a mutual exchange of property and sale, and Mr. FEARON, sen. covenanted to make and keep in repair a certain road and fence, which it was necessary to construct for the accommodation of both parties. The late Mr. FEARON did make the road; but before his death it had gone out of repair, and now his successor, Mr. FEARON, the defendant in this action, refused to do what was needful on four grounds; 1, he says there is no such deed; 2, that he is not his father's executor; 3, if he were so, he had never administered; and 4, that he never proved the will. To which the plaintiff answered on the pleadings, by maintaining the affirmative of the first three propositions, and as to the fourth, he says it is true that you may not have proved the will, but it can be shewn that you caused your sister to do that for the purpose of evading the obligations of the covenant.

 

Mr. TAYLOR, conveyancer, witnessed the execution of the covenant—which was put in.

 

Mr. BROUGHAM examined the stamps. The third, he said, was only a £20 one, whereas, for such a deed, it should have been £25, like the other two.

 

Mr. PATTESON, on the same side, referred to the act. They had counted the words, and found them to amount to ten more than were allowed for the stamps on the document.

 

Mr. SCARLETT.—For the purposes of this act, we have paid £20 penalty at the stamp-office, which obviates all objection.

 

Mr. Baron HULLOCK.—I am not prepared to say that; but I shall not stop the cause. You, Mr. BROUGHAM, may avail yourself of this hereafter should you think proper.

 

Mr. SCARLETT.—I have a person who carefully counted the words of the deed twice over, and he finds that they do not exceed 2000. If you succeed in your objection, I'll have the deed impounded.

 

The Associate read such parts of the document as bore on the question at issue: it was as stated by Mr. SCARLETT.

 

There was some further discussion between counsel, as to the number of words, one side contending that the names of the parties to the deed came under the expression of the act, "matter endorsed thereon," while Mr. SCARLETT maintained that the act could not mean any such thing, but only the title, &c. The Judge reserved the point to be hereafter ascertained.

 

Mr. TAYLOR's examination continued, to shew that the defendant had administered under his father's will:—Mr. FEARON, he said, gave me directions to advertise to desire the creditors of his father to bring in their claims to him. I married one of his sisters, who was one of the executors. I was present when my wife offered to repair the road, in order to prevent this action, but he would not permit it. I took a schedule of the property of the late Mr. FEARON, in the defendant's presence. He objected to my putting in a table and half a dozen chairs, because he said they were his own. We had a part. He took away the dairy utensils—some milk-leads, for instance, in my presence. The schedule was made by order of the sister's attorney.

 

Cross-examined by Mr. BROUGHAM.—I won't take upon myself to say that he limited his claim to the table and six chairs. The milk-leads were taken away by some of his people, but I did not actually see them carried away. This was half a year after the old man's death. As to the advertisement, that was published to ascertain the amount of the debts due before administering.

 

Mary FEARON.—I am defendant's sister. My father lived at Beckstone, and had furniture, which was valued at £100, and my brother got half of it. He delivered a cow and some horses that my father had, but kept a lot of sheep. My father gave him property in his life-time—cattle, sheep, stock and crop, reserving forty sheep for himself. My father also left hay.—This witness proved various acts of administration, and said she had made an offer to repair the road rather than come here, but her brother would not allow it.—The land is in his possession.

 

Mr. HARRIS, a respectable gentleman farmer, bought some hay of the Misses FEARON belonging to the late Mr. FEARON, and when he went to take it away, William, the defendant, would not permit him to do so, saying that his sister had not a right to dispose of it without consulting him; he therefore insisted that it should not be removed without his permission. In consequence, witness agreed to give him 10s. more than the sum originally stipulated, and then took it off.

 

By Mr. PATTESON.—He told me that his sister knew nothing about the value of hay. It grew on part of the Beckstone premises.

 

Henry PEARSON, and Mrs. TAYLOR, gave evidence to prove the same and similar facts.

 

Mr. NICHOLSON, solicitor, Cockermouth, produced an indenture of lease and release, between the defendant Wm. FEARON, and his sisters Elizabeth and Mary, dated 15th and 16th Dec. 1824, in which he is styled "one of the executors." It was also stated that Eliz. FEARON "alone proved the will"; and William FEARON agreed to "confirm the said will," &c.

 

Mr. SCARLETT.—Then comes the release of the said estate (Beckstone), and afterwards that he took away "the furniture stated," &c.

 

Mr. BROUGHAM was not prepared to admit that the case of executor was proved.

 

Mr. Baron HULLOCK.—His interference in respect to the hay makes him one. I think I can understand his conduct well enough—which was to keep himself harmless, and yet not to let them act without him.

 

John RIDLEY called.—Knows the road; it is out of repair; about £10 would put it in a proper state.

 

Verdict for the plaintiff on the three first issues; and on the fourth, damages £10, on the record.

 

The point reserved in regard to the stamps, "if there be any in it (said the Judge) but I think there is not."

 

 

[to be continued]