Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (29)

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

 

CUMBERLAND SUMMER ASSIZES

 

[continued]

 

FORSTER v. MITCHELL.

 

Mr. SCARLETT said this action was brought to recover the sum of £9 for hides supplied by the plaintiff, who was a butcher at Wigton, to the defendant, a tanner residing at Maryport. The latter, as was common in the trade, had made a bargain, at a certain price, for a year: but before the contract was fulfilled, finding that the bargain was not likely to prove so good-a-one as he had expected, wished to run from it, but the plaintiff refused consent, and then Mr. MITCHELL declined taking in any more hides, in consequence of which some of those now sought to be recovered for were spoilt, but he, of course, was liable to pay for them, as they had been sent pursuant to contract.

 

A brother of the plaintiff spoke to the bargain, and a subsequent demand for payment. The contract was made to extend from Martinmas 1824, to Martinmas 1825. He, however, knew nothing of the nature of it.

 

John BROWN came into the box to prove the transmission of the hides. He produced an account which he at first could scarcely read, and the embarrassment of his manner, more than his matter, set the whole court in a titter. He gave details as to bull-hides, and co-hides: and Mr. AGLIONBY inquired if he had any calf-skin. This seemed to be so much at home—applied so well to his business and his bosom, that he went through the remaining items con amore.

 

A man in the employment of Mr. BUSHBY, common-carrier, proved that he took various lots of skins to Maryport, and that they were fetched away by the defendant; but he refused to take in the last two lots, though no notice was given to that effect before they were laid down. Mr. BUSHBY deposed that he had been paid by MITCHELL for the carriage of a part of the skins in dispute. This was the plaintiff's case, but as the contract had not been proved, the Learned Baron directed a nonsuit.

 

LEWTHWAITE v. SIMPSON.

 

Mr. AGLIONBY opened the pleadings, and Mr. Sergeant CROSS stated the case to the Jury. Mr. Wm. LEWTHWAITE, the plaintiff, he said, was a respectable landowner residing on his own estate in the parish of Millom in this county, and now appeared in this court to complain of an encroachment on his rights, on the part of the defendant, lest by neglecting to assert them, that neglect should be construed into an admission of their non-existence. He complained that, having a right of common on Thwaites Fell, Mr. SIMPSON, as the tenant of a farm called Beckfoot, the property of Mr. TOWERS, came upon that fell to get turfs, which he was not entitled to take.

 

William LEWTHWAITE, of Swinside, proved that the defendant had taken the turf as stated in the opening. Mr. LEWTHWAITE always got his turf on Thwaites-fell.

 

John WILLIAMSON also proved that Mr. LEWTHWAITE had for a long period exercised his right without interruption.

 

Mr. BROUGHAM said (in answer to a question from his Lordship, though not in the cause) the question of boundary was not raised in this action: that would come on to be tried in another cause further down the paper (TOWERS v. LEWTHWAITE) in which he held a brief.

 

Mr. Baron HULLOCK asked if they could not put both questions together, and refer the whole?

 

Mr. SCARLETT said the question was one purely of right of common, and not of boundary. He had no objection to refer—but he merely said so, without any particular wish to do it, in order to remove any idea that they resisted.

 

Mr. Sergeant CROSS.—The cause will occupy but little time; and part of the jury, I understand, have had a view.

 

John Nicholson COOPER, owner of Beckfoot before it passed into the hands of Mr. TOWERS, deposed that when he resided upon the property, he did not, on account of it, get turfs on Thwaites-fell, but on Ulpha-fell, although it would have been more convenient to have obtained them on Thwaites. He was never present at a boundary riding.

 

Cross-examined by Mr. SCARLETT, for the defendant.—He had turned cattle and horses on Thwaites-fell at Thwaites-gate, the nearest point of the common to the premises in question. Some cottagers there also get turfs on Thwaites.

 

Jane MAWSON was in the service of old Mr. COOPER, at Beckfoot, fifty years ago, and for ten years got peat to burn on Bowscale.

 

Cross-examined, she did not know whether Bowscale formed part of Thwaites-fell or not.

 

George ROBINSON put in a plan of the common and surrounding country, which he believed to be correct. He had heard that there were disputes about the boundary between Ulpha and Thwaites.

 

Mr. HOBSON, attorney of Whitehaven, was called to prove that there are two such townships as Thwaites and Ulpha in Millom; and two manors of the same name, belonging to different lords.

 

Mr. SCARLETT addressed the Jury for the defendant.—The plaintiff had proved, he contended, by every witness, the very right which he disputed. The question at issue shortly was, whether Mr. LEWTHWAITE had a right to complain of injury done him by Mr. SIMPSON, in taking turf as tenant of Beckfoot, the property of Mr. TOWERS, from Thwaites-fell. It was impossible for him (Mr. SCARLETT) to have made out a stronger case than his learned friend had established in his behalf, by his own statement, and his own witnesses.—Mr. SCARLETT was proceeding to argue upon the evidence, laying considerable stress on the turning on of cattle, though he admitted that fact was not conclusive in a case of turbary, when the parties came to an understanding, and agreed to refer this question, and that of the boundary above alluded to—entering a nominal verdict for the plaintiff.

 

 

[to be continued]