Carlisle Patriot, 17 Jul 1824 - Cumberland Sessions (1)

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Saturday 17 Jul 1824 (p. 2, col. 6 – p. 3, col. 4)

CUMBERLAND SESSIONS.

On Tuesday, the General Quarter Sessions for the County commenced at the Court Houses, in this City, before Francis Yates AGLIONBY, Esq., chairman, and the following Magistrates:—Sir Fredrick FLETCHER VANE, Bart.; Sir J. R. G. GRAHAM, Bart., Rev. Henry LOWTHER, Thomas BLLAMIRE [sic], Esq., W. P. JOHNSON, Esq., John HEYSHAM, Esq., Rev. Walter FLETCHER, George BLAMIRE, Esq., Rev. Thos. LOWRY, D. D., Thos. WYBERGH, Esq., Joseph GILBANKS, Esq., Richard FERGUSON, Esq., Wilfrid LAWSON, Esq., John HARRISON, Esq., Rev. Thomas RAMSHAY, Richard WATTS, Esq., Rev. Peter HOWE, Rowland FAWCETT, Esq., Rev. T. MATTHEWS, E. W. HASELL, Esq., Wm. BROWNE, Esq.

Mr. STUDHOLME, of Kingmoor House, was foreman of the Grand Inquest.

The following appeals were heard on Tuesday and Wednesday forenoon, besides various motions for suspending proceedings in cases where indicted roads were either put in good condition, or under repair with a promise of speedy conclusion.

BEWCASTLE v. KINGWATER.

Adam NOBLE and Elizabeth his wife, were removed from Bewcastle to the township of Kingwater, parish of Lanercost.

Mr. COURTENAY said he appeared in support of the removal, which took place on the ground that NOBLE had gained a settlement in Kingwater, by renting therein tenements to the value of at least £20 5s. per annum, including residence, keep of cattle, land for corn and potatoes, &c. The very same question had been decided in this Court in his favour, in 1818. But his friend (Mr. AGLIONBY), he understood, intended not to rely on the facts of 1818, which he was aware were against him; but on a part of the case which had been affected by a subsequent act of Parliament, and an obiter dictum of Mr. Justice BAYLEY, which he had found in a note to a reported case; namely, that because there was not actual residence on the tenement for which settlement was claimed none was acquired. He (Mr. C.) entertained a great respect for Mr. Justice BAYLEY, in common with the other learned Judges of the Bench; but he must say, that he could not place so much faith in the obiter dicta of any judge, loosely thrown out, as when deliberating on the Bench, assisted by other members of that learned body, and founded on known decisions. Mr. COURTENAY adverted to several cases, by way of anticipating objections. And as to the objection to the mode of occupation: that would not avail. A fishery, a warren, or tithes gave settlement, and how was a man to reside on either of these. He called on the Bench to abide by decided cases, and not rely on the obiter dicta of single judges.

Adam NOBLE, the pauper, called and sworn.—On the 12th of May, 1823 [sic], I went into the service of James ROWNTREE, in Kingwater Quarter, and left him, for the last time, about six years ago. I bargained with him, that he was to keep me two cows all the year, and let me take in one in summer: all to be fed in whatever ground I thought the best. One year, I had four cows, but paid for one of them as a stint. I valued the keep of the two cows at £3 each; the summering of the third cow at 24s.; and I paid the same for the fourth. A mare and foal, which I was to keep through the year, I reckoned at £3; a calf, kept the whole year, at 20s.; four geese and 26 goslings, 26s.; a swine at about 10s. I had also as much land as would take six Carlisle pecks of seed potatoes, my master finding the manure, value £2 2s.; corn land, for six pecks of corn, at 30s.; sometimes a pet sheep, value of keep, 5s. The house was better than one for which I have since paid £3 a year. I had a lock to it, and kept the key.

The witness was cross-examined at great length by Mr. AGLIONBY, but his testimony was very little if at all impaired by it. The 24s. for the fourth cow, he paid over to his master. The goslings were not kept the whole year; but only till sold off. The house was that in which his master put all his shepherds, and was 200 yards from his own dwelling. The estate consisted of at least 200 acres, all in Kingwater.

Mr. COURTENAY rested his case here, having established, he contended, £18 16s., even without the cottage.

Mr. AGLIONBY said he had nothing to object against the witness; he thought he was a fair one; and as he could not reduce his estimate by the most rigid examination of it below ten pounds, he should consider the question more as a point of law than matter-of-fact. His learned friend had stated that this was an attempt to re-open the inquiry of 1818. It was so; but certainly not an improper one; the parish which he represented justly considered that the law was in their favour; and believing that to be the fact, they very reasonably came into Court to take advantage of it. Mr. AGLIONBY then cited the case of the King v. Bardwell, and urged the principle of it as applicable here. The obiter dicta of judges, though not equal to regular decisions, were worthy of weight. He submitted, that in this case, there was no coming to settle upon premises connected with the stints; the cottage was common to all ROWNTREE's shepherds, and not intended as the tenement of the premises. He cited, in support of his position, the King v. Shenstone, and many other cases less in point, besides the King and Bardwell, the chief reliance.

Mr. COURTENAY admitted that NOBLE came to inhabit, and not as tenant of the house; but the amount, without that, was near £20.

Mr. AGLIONBY.—The question now solely rested on the point of law, whether this residence as a servant could be coupled with the value of £10, so as to gain a settlement. He submitted, according to the obiter dictum of Mr. Justice BAYLEY, that it could not.

Mr. COURTENAY.—I submit that it can, and move the confirmation of the order.

Order confirmed unanimously, by a full Bench.

Mr. AGLIONBY moved for a case, grounded on the obiter dictum of Mr. Justice BATLEY. He hoped that the Quarter Sessions of Cumberland would not come to a final conclusion on a point which Mr. Justice BAYLEY said was doubtful.

Mr. COURTENAY.—I trust that the Sessions will not put the parish to further expense unnecessarily. My learned friend says that the Bench cannot be certain where there is against them the obiter dictum referred to. Now what is an obiter dictum? Something said by the way. The judge went beyond the case, and the law, so far as it appeared, when he threw it out. If obiter dicta are to be attended to, in the face of decided cases, then I set off my obiter dictum, by saying that there cannot be a doubt but that such an occupation is perfectly valid. The Magistrates have the most conclusive ground for their decision. It is their duty to guard the purses of the people, and prevent parishes from running into expense, if they themselves do not know what they are about.

Mr. AGLIONBY.—I am sorry to see such vehemence of opposition to my application: it looks like a wish, on the part of my friend, to shut us out from justice, for he has said nothing of the merits of the question. I am sure the Magistrates will doubt when Mr. Justice BAYLEY does not feel certain; Mr. Justice BEST goes still further; and the learned reporter of the case (King v. Bardwell) agree with them. When all this is the fact, the Quarter Sessions may well doubt.

Mr. WYBERGH.—I have a very high opinion of Mr. Justice BAYLEY, and shall certainly vote for a case, though I voted for the confirmation of the order.

Mr. AGLIONBY.—I won't now say that I shall advise the parish to try it: I shall consider the subject; certainly I shall not counsel them to throw away money.

The Court granted a case, founded on the obiter dictum of Mr. Justice BAYLEY; and that learned Judge will probably have an opportunity of giving a more explicit opinion on the question in the Court of King's Bench.