Carlisle Patriot, 13 Aug 1825 - Cumberland Summer Assizes (20)

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

Saturday 13 Aug 1825   (p. 4, col. 1-6)

 

CUMBERLAND SPRING [sic] ASSIZES.

  

LOWDEN v. NIXSON.  S. J.

 

[continued]

 

Mr. YOUNG, attorney for Mr. LOWDEN, produced the agreement, specification, and contract, alluded to by Mr. SCARLETT. This document bore date 5th May, 1819; the building was to be of the best materials, and to be completed by the 20th of October same year. Mr. YOUNG also produced the agreement to refer, dated 9th April, 1825. The arbitrators were Mr. Jas. PARNELL of Askham, Mr. Benjamin PROCTOR of Hackthorpe, and Mr. Samuel RIGG of Abbey-House; any two of them to have power to examine witnesses, including the parties themselves, and make full compensation, &c.

 

Mr. BROUGHAM objected that the power of the arbitrators was not accurately set out in the 5th count of the record.

 

Mr. Baron HULLOCK.—They set out enough to show that there was a contract.

 

Mr. BROUGHAM.—We say that one contract was made and another is set out, so that the contract is not identified.

 

Mr. PARK urged the objection more at length.

 

Mr. SCARLETT.—But I don't hear, after all, that they have pointed out any difference.

 

Mr. Baron HULLOCK.—There is nothing in this point. They state the substance of the whole, and that is sufficient.

 

Mr. MACHELL, of Low-plains, proved the letting of the farm to Mr. CONNELL, as agent for Mr. OLIPHANT, at 500 guineas a year, the contract to lay out £500, the passing of the property to Mr. LOWDEN, the contract with Mr. NIXSON, at Penrith, as stated by Mr. SCARLETT, and spoke to the imperfect construction of the well, to which he objected while the work was in progress, the wall of the well not being of hewn stone.

 

Cross-examined by Mr. BROUGHAM. Mr. NIXSON at first objected to take the contract at Penrith, as he said he was busy that year; and he stated that if he took it he must re-let. Mr. MACHELL did not recollect that he recommended GASH in particular. He knew that the work was re-let to that person. Mr. NIXSON is an eminent builder; GASH has also done a great deal of work in this neighbourhood, among the rest, the homestead at Lowthian Gill.

 

By Mr. SCARLETT.—No force was used, I presume, to compel Mr. NIXSON to take the contract? No,—No pistols nor poker? No, no.—(A laugh.)

 

Mr. Henry ADDISON spoke to seeing Mr. NIXSON at Hayclose with the intention of erecting the buildings.

 

Mr. YOUNG was again called to prove the payment of various sums of money, to the full amount agreed for. He likewise described the proceedings on the arbitration. Mr. LOWDEN had gone through his case, the arbitrators examined the premises, Mr. HODGSON was afterwards heard for the defendant; and they subsequently revoked the arbitration without examining witnesses for Mr. NIXSON.—He put in a written revocation, signed by Mr. N. and sent to Mr. PROCTOR.

 

By Mr. ALDERSON.—The specification was put in at the arbitration. It was missed at the abrupt termination of the proceedings; I followed Mr. HODGSON and his client and obtained it with difficulty, after something had passed about "King's Bench," and "motion"—(Laughter.)

 

By Mr. BROUGHAM.—On the arbitration, after Mr. LOWDEN had been examined, Mr. HODGSON proposed the examination of Mr. GASH, and the arbitrators decided against his competency, when Mr. LOWDEN refused to give a release, and thus the matter broke up. Mr. HODGSON objected to the arbitrators breakfasting with Mr. LOWDEN on the day of the view; he said they had better not—Cæsar's wife ought to be above suspicion. (A laugh.)

 

Mr. BROUGHAM.—But didn't Cæsar's wife get a second snack?—(Laughter.)

 

Mr. YOUNG.—Something of that kind was afterwards mentioned.

 

Mr. BROUGHAM—Had this matter been left to a professional man, it would really have been in the hands of Cæsar's wife, and we should not have been trying.

 

Mr. Baron HULLOCK—What say you to a professional man now? You can get an award much sooner than you can get a judgment?

 

Mr. SCARLETT—Mr. BROUGHAM, having made a successful joke about Cæsar's wife, seizes the opportunity of proposing a reference: but Mr. LOWDEN wishes to prevent a second trick of Cæsar's wife. (A laugh.) We have no objection, however, to refer, if we get a verdict.

 

Mr. BROUGHAM could not object to that, as the complexion of the case tended that way. But he wished Mr. GASH to become a party to the arbitration, he consenting, in order to prevent an action against him on the part of Mr. NIXON [sic].

 

Mr. SCARLETT—That can be done, if GASH consents. But my Lord, they ought to have questioned Mr. YOUNG a little further to shew that Mr. NIXSON was examined as well as Mr. LOWDEN.

 

Verdict for the Plaintiff, which carries costs: damages, (nominal) as in the declaration, £2000—the amount of compensation to be settled out of doors.

 

This case was also confided to the decision of Mr. LOSH, and that Gentleman commenced his inquiry on the same afternoon (Thursday.)

 

 

[to be continued]