Carlisle Patriot, 20 Aug 1825 - Cumberland Summer Assizes (31)

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

 

CUMBERLAND SUMMER ASSIZES

 

[continued]

 

DOE D. HACKETT v. MARTIN.

 

This was an action of ejectment to recover the possession of certain premises in the parish of Distington, near Whitehaven. The question turned upon the validity of a will.—The pedigree was admitted.

 

Mr. SCARLETT, in this case, commenced by addressing the Jury for the defendant.—He said the title of the plaintiff depended on him being heir at law of the person last seized; that he was willing to admit, because he should show that the defendant succeeded by will which he should prove. The testator was occasionally addicted to drinking, but it did not follow that he had on that occasion lost his senses. The Jury would perhaps be told that he was in liquor when he made the will; he should prove, however, that when he executed the instrument he was in a state fully competent to that duty. It would appear that he afterwards made a codicil to the will, and that he did it on the advice of a schoolmaster, named NICHOLSON, to whom a legacy was left; but when he found that there was not property sufficient to pay the legacy, he turned round, and now sought to upset the work of his own hands.

 

Wm. HOLMES, of Distington, examined by Mr. CLARKSON.—Mr. Isaac NICHOLSON called upon me on the 19th of Jan. 1824, at the desire of Mr. BANFIELD, to desire me to go and hear Mr. HACKETT's will read. I went and found nobody in the room but NICHOLSON and HACKETT, the latter in bed. Mr. BANFIELD came, and Hester CHRISTIE was sent for, and came. Mr. BANFIELD said to HACKETT, 'I have brought your will; shall I read it to you?' He answered 'Yes.' Mr. B. then read the will distinctly, and HACKETT appeared to understand it perfectly, said he was satisfied with it, and sat up in bed and executed it, by making his mark, touching the seal with the pen, saying, "this is my last will and testament." HACKETT could see every thing that passed. Hester CHRISTIE was about three yards from the bed. I then witnessed the will. (The will handed to witness.) This is my signature: NICHOLSON was in the room the whole time. I afterwards went to witness the codicil. Mr. BANFIELD had it, and said to HACKETT that he had brought it by his orders: Hester CHRISTIE was again present, and witnessed the document. HACKETT was in the full possession of his faculties as far as I know, and I had known him about 20 years.

 

The witness was cross-examined by Mr. BROUGHAM, but nothing important was extracted from him.

 

Mr. Bateman BANFIELD called.—I am an attorney residing at Whitehaven. Isaac NICHOLSON, schoolmaster, Distington, brought me instructions to make a will for HACKETT, and I afterwards went with the will to Distington to get it executed. HOLMES was present. As NICHOLSON could not be a witness, he being a legatee, he fetched a person named Hester CHRISTIE. I found HACKETT in bed. I read the will, to him and he appeared very eager to sign. I won't say that I read the whole, but I read the chief part, and mentioned the legacies and all that was material. The room was small. HACKETT made his mark, and published, in the usual form, as his last will and testament. HOLMES signed. Hester CHRISTIE put her mark. A table was placed by the bed side for HACKETT to sign; the attestation was done on a chest of drawers close to the bed-side.—Mr. BANFIELD also spoke to the same effect as to the codicil. HACKETT was perfectly rational, and NICHOLSON made no objection.

 

Cross-examined by Mr. BROUGHAM, he admitted that he did not read the whole document. The paper now handed in was the instructions left by NICHOLSON, with orders that they should be followed in the will.

 

The will was put in. It bore date Jan. 17, 1824. It contained various legacies—one of £25 to NICHOLSON, &c.—making William MARTIN his executor.

 

Mr. BROUGHAM put in the instructions given by NICHOLSON, and they were found to differ entirely from the will. In these, the legacies were charged on the real estate; and the descent of the bulk of the property was quite contrary to the intention of the testator.

 

The Judge said this was fatal, and a verdict, under his Lordship's direction, was given for the plaintiff.

 

The instructions will now be proved as the will. A favourite nephew comes in for the real estate as heir-at-law.

 

BENSON, CLERK, v. STAMPER.

 

Mr. ARMSTRONG stated that this was an action for a breach of contract in the management of a farm which the defendant rented of the plaintiff.

 

Mr. BROUGHAM.—Mr. BENSON, who is well-known as one of the best agriculturalists in the county of Cumberland, has been obliged to bring this action against STAMPER, lately a tenant of his, on account of breach of agreement on leaving his farm. In 1817, STAMPER took the farm on lease. The times were unfavourable and as he thought the rent too high, the lease was put an end to, and in 1824, STAMPER entered into a verbal agreement to quit the premises, and not to take any straw away. But when he was about to leave, Mr. BENSON, on visiting the spot, found him carrying away a large quantity of straw. He remonstrated. STAMPER then asked if he would not suffer him to use straw in packing up his goods, but Mr. BENSON, on account of what had taken place, refused, and then STAMPER became insolent, and in spite of his landlord's advice and threats of an action, he persisted, and not only took away straw, but also a number of gooseberry bushes out of the garden.

 

Mr. Baron HULLOCK.—Cannot this be adjusted in some more satisfactory manner?

 

Mr. SCARLETT.—I believe my learned friend's case will adjust itself as soon as the agreements are read.

 

The first agreement was then put in, dated Jan. 16, 1817. By it, STAMPER took Mr. BENSON's farm at Waverbank, in the parish of Bolton, at £150 per annum, to be paid quarterly; and if at the end of three years the price of wheat should average 30s. per Carlisle bushel, then the yearly rent to be raised to £170. He also agreed to cultivate the farm according to good rules of husbandry, and in the last year to leave standing 25 acres of wheat.

 

Mr. SCARLETT.—I now hold in my hand an agreement between the parties, on STAMPER's quitting the farm, written by Mr. BENSON himself in the defendant's memorandum book, and we have had it duly stamped.

 

This document evidently surprised Mr. BROUGHAM. It stipulated that the defendant, on quitting, was to leave two stacks of wheat, and take care that the premises were in tenantable repair.

 

Mr. BROUGHAM said he had opened a parole agreement, and this was no answer to it.

 

Mr. Baron HULLOCK.—There was no pretence for proceeding further after the positive agreement dictated by the landlord himself. He thought that the written agreement cancelled the parole one when both were on or about the same date and the subject-matter. Still, if Mr. BROUGHAM wished to go on, he would not stop the cause here.

 

Mr. BROUGHAM said he saw the difficulty, and was afraid that he could not overcome it.

 

Mr. SCARLETT (smiling).—No, I believe not. And as to the gooseberry bushes: my client brought a much greater number on the premises and supplied another tenant, at Mr. BENSON's desire, with more than he took away.—Plaintiff nonsuited.

 

 

[to be continued]