Carlisle Patriot, 29 Oct 1825 - Westmorland Sessions (1)

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Saturday 29 Oct 1825   (p. 4, col. 1-2)

 

WESTMORLAND SESSIONS.

 

We stated in our last paper, that the Westmorland Quarter Sessions for the East and West Wards, were held at Appleby, on Monday the 17th inst. before Sir Philip MUSGRAVE, Bart. M. P., and a Bench of Magistrates. We now give a full report of the principal business which came under the cognizance of the Court.

 

Thrimby, appellants; Great Strickland, respondents.

 

Mr. COURTENAY stated to the Bench that the pauper was a young girl, who had not obtained any settlement of her own; the present enquiry would therefore be, as to the settlement of the father. The townships of Little Strickland and Thrimby are both within the parish of Morland; but each township maintains its own poor. It appeared that there was a chapel of ease at Little Strickland, at which the pauper's father officiated as clerk; and if he could anticipate the argument of his learned friend, it would be that he gained a settlement there during his residence at that place by serving the office annually. The learned gentleman would show that SMITH, the pauper's father, was hired weekly, and that he never completed a year's service. If his learned friend could show to the contrary, there was an end of his (Mr. C.'s) case.

 

John SMITH sworn.—I am the father of Jane SMITH, the pauper; she has no settlement that I know of. In 1803, I lived in Little Strickland, and in the same year removed to Thrimby.

 

Cross-examined by Mr. AGLIONBY.—I left Thrimby in 1817, and went to reside at Little Strickland, where the township of Thrimby took me a house, not having one for me in their own township. I was appointed clerk to the chapel at Little Strickland before I left Thrimby. The parish church is at Morland. The people of Thrimby and Little Strickland chiefly went to the chapel; sometimes the people of Great Strickland went, but they had no seats in it. I was appointed clerk by a vestry meeting in 1815; I was to have nine-pence a Sunday, which was to be paid on new-year's-day. The year's salary would amount to 39s.; and two weeks' pay was to be deducted for every Sunday that I should be absent. I was off and on from 1815 to 1822. I took possession the Sunday after I was elected, and continued to do duty until the following new-year's-day, as I wanted more wages. At that time they wanted me twice a day, and before they only had me once. I thought it not fair. (A laugh.) After new-year's-day, I sometimes attended, and sometimes not; but I said that I would not charge them any thing; I would make them a present of it until they came to my terms. At length, I made a fresh agreement: I was to have nine-pence a Sunday and my dinner at each house, once in the year. I continued until new-year's-day, when I could not get my pay: they had no money, and I would clerk no more until I got my pay. I kept off two or three weeks, during which time no other person was elected. I then went on as usual, but was frequently absent. They had never any money at the year's end. I dug the graves and received the fees. I washed the surplice—at least my wife did—it was washed once in two years: we had 15d. a time for doing it. I never said I would rather be settled in Thrimby. The 9d. a week was paid to me by the church and chapel warden; both offices are vested in one person. My first appointment, in 1815, was by week, in order to prevent my obtaining a settlement. The first year I received my 39s. in full. In 1817, Little Strickland folks fancied that Thrimby people wanted to throw me upon their township—I was then reduced to a begging clerk. Mr. POOLEY desired Mr. WEBSTER to take me a house of John JENNINGS, of Little Strickland, and to give him all the rent he asked for it, as it might serve their turn another day. In 1821, a pound note was to be distributed amongst the poor of Thrimby; it was part of a poaching fine; and I got it, being the only poor man belonging to the township. During that time I lived at Little Strickland, where the Thrimby people paid my house rent.

 

Mr. AGLIONBY said it would be for the bench to decide whether the settlement was acquired in Little Strickland or in Thrimby—with regard to Great Strickland that was out of the question. SMITH was sexton as well as clerk to the chapel of Little Strickland; and the learned gentlemen quoted, 1, Noland's Poor Laws, 552; the King v. Liverpool; a person was elected sexton to the church or chapel of St. James's, which, with part of the church yard, stands in the parish of Walton, and the other part of the church yard in the parish of Liverpool; but no corpse was ever buried in that part of the church yard in Liverpool parish, whilst the pauper executed the office, although there has been since. The inhabitants attend the church of St. James's in a large proportion, and the sexton resides in Liverpool. Lord Kenyon, C. J. "The church-yard lies in two parishes; part of the office of sexton consists in digging graves; he gained a settlement in that in which he resided."—SMITH resided in Little Strickland, and by annual service gained a settlement there. It is true that the original settlement was in Thrimby. His learned friend said, "why did the Thrimby people continue to relieve SMITH whilst residing in Little Strickland if they were not satisfied that he belonged to their township." The answer he would make to that was, that the continuance of the relief was ill founded, inasmuch as a subsequent settlement had been obtained. It now remained to say, whether those occasional absences occasioned a breach of contract. The election to the office of clerk is annual. Whoever heard of the weekly hiring of a parson? (A laugh.) Mr. COURTENAY: Clerk, isn't it? (A laugh.) Mr. AGLIONBY: Clerk, I mean. No other person was elected during his absence; when he came back he resumed his office, and went on as before—it was no dissolution of contract, but a dispensation. He would mention a case of analogy—that of hiring and service; the servant goes away for two or three weeks, by the consent of his master; when he returns he continues the service. This is a dispensation, and so it is in the case of SMITH, who, it was agreed, should be fined two week's pay for one week's absence:—it was understood between the parties, and therefore according to contract. SMITH swears that he never received a full year's salary in any one year except the first: but it matters not; if he was entitled to receive it, the settlement remains still the same. Can it be said that he did not virtually serve the office of clerk? No other person was ever appointed during his absence—he came back and continued the office as before. The learned gentleman would call two witnesses, although he did not think they could vary the case,—it was sufficiently strong as it stood.

 

John JENNINGS sworn.—I am the present clerk of Thrimby and Little Strickland chapel. I was present at a vestry meeting in 1817, when John SMITH was elected clerk; he resided in part of my house; the rent was £4 a year. I never knew any person do duty whilst John SMITH was absent but once.

 

Cross-examined.—I did not know that George GARNET was appointed clerk: I once made a grave whilst SMITH was absent; I was requested to by his wife, and I received the fee. When SMITH came back he went on as usual. By the Court: The Thrimby people paid the rent for SMITH. My engagement as clerk is a shilling a Sunday, and I am paid yearly.

 

Rev. Mr. WEBSTER sworn.—I have been clergyman of Thrimby and Little Strickland chapel since 1804. John SMITH was the first clerk who was appointed; he was to have 39s. per year, and 18d. was to be deducted for every Sunday he should be absent. 13s. were paid out of the parish funds, and the remainder by those who had seats in the chapel. SMITH was absent every year less or more, but one [sic - presumably should be no one?] was appointed during his absence. When he came back from such absences he went on as before. SMITH took care of the surplice and made the graves.

 

Cross-examined.—By saying that he took his place again, I meant that he took his office. I never knew him pay any fines. By the Court: The first agreement was for a year.

 

John KITCHEN called by Mr. COURTENAY.—I was present at the first engagement of SMITH in 1815. It was talked at the time that he was to have 9d. weekly, in order to prevent his gaining a settlement.—Cross-examined: Who talked of hiring him by the week? Answer: I talked of it. Counsel: I ask you on your oath whether it was not to be 39s. a year? Answer: 39s. was talked of at the vestry, but it was to be 9d. a week. Counsel: Who was at the vestry? Answer: Many persons (naming them) and Mr. WEBSTER. Counsel: Mr. WEBSTER is here to-day, but he contradicts you. Answer: I cannot help that; the bargain was made for ninepence a Sunday, but it was considered to remain for a year. He was not paid ninepence every week and told to go about his business. I helped him to collect his pay in 1816, a little after Christmas-Day.

 

Mr. AGLIONBY, in addressing the Bench, said that a more lame case was never brought before a court; or a more silly witness than the last was ever put into the box;—he had fairly knocked on the head every question which was put to him. He thought that his learned friend would not now occupy the time of the Court five minutes longer. There was no proof of a dissolution of service. After a few other remarks,

 

Mr. COURTENAY addressed the Court. His friend had made some witty and rhetorical flourishes; and he had not been sparing in sophistry, the evil tendency of which it would be his (Mr. C.'s) business to do away with. His learned friend had admitted the original settlement to be in Thrimby, and that Great Strickland had nothing to do with it. Therefore, the only solid and certain ground upon which the Court could decide, would be to confirm the order, as there remained a doubt with regard to Little Strickland. That the office in certain cases was an annual office he was ready to admit,—See "Milwick & Gatton, 4th Burn,"—but he denied that it was so in an unqualified sense. If a man be indefinitely appointed, it may also be an annual office; but that it was so as an abstract proposition he utterly denied. If the parties chose to elect a person for a shorter period than a year, he should like to know what law there was which would prevent them from doing so? Who for a moment could dispute the evidence of SMITH? His conduct and demeanor was such that no one could disbelieve him. Mr. WEBSTER contradicts him; but that gentleman cannot be supposed to recollect the circumstances so well as the pauper, who is most interested in the business, and therefore more likely to remember every particular. His learned friend said a certificated person might obtain a settlement a fortiori; so may a person receiving relief. There was no performance of a year's duty. SMITH says he never did act for a whole year. There never had been an annual service; and, secondly, there was no annual hiring. The learned gentleman moved that the order be confirmed.

 

Mr. AGLIONBY.—I move that it be quashed.

 

Order quashed.

 

The Parish of Orton, removants; Kendal, respondents.—Order quashed.

 

 

[to be continued]