[List-Cumbria] Carlisle Patriot, 22 Jun 1816 - Tithe Cause

[Petra Mitchinson]

Saturday 22 Jun 1816   (p. 3, col. 1)

 

TITHE CAUSE.

 

WARWICK and ANOTHER, v. COLLINS.

 

The motion for a new trial in this Celebrated Cause (tried at our last Assizes) came on in the Court of King's Bench, on the 15th
instant, and was argued two successive days. The following abstract of the opinions of the Bench after hearing the arguments on each
side, was made by one of the counsel employed on the occasion, and, consequently, it may be regarded as correct: 

 

Lord Ellenborough.-"The question is, was the Land intrinsically barren? I think upon the evidence it was not-all the witnesses say
the soil was good. I think the nearness or remoteness of the Limekiln cannot govern the question, which turns upon the natural
quality of the soil. The word 'Expense' in the former Judgment, would have been more correctly Expenditure. I think the Lime may be
considered as in part applicable to the removal of the roots and integuments, and so within the principle of WITT v. BUCK,
SKERINGTON v. FLEETWOOD, &c. The Lime is larger in quantity in order to remove the obstructions, which removal is necessary to get
at the natural quality.-As to the Barley, the smallness of the sum is no objection to a New Trial when a right is in question." 

 

Mr. Justice BAYLEY.-"Great weight is in the observation that the Barley in some degree involves a question of right. Still I think
there should not be a New Trial on this point, because not moved for this part, nor any dissatisfaction expressed by the Judge. I
think the Oat Land within the protection of the statute. This Land lay barren by reason of its barrenness; i. e. because it could
not be cultivated with the ordinary expense applied to other land in that neighbourhood. I put out of consideration the Cases cited
by Mr. WILLIAMS. They apply the impediments necessary to be removed before the plough can be used. I conceive one field may be
barren which lyes at a distance from lime, whilst other Land of the same natural quality, laying near to Lime, may not, if Lime be
necessary to make it productive. This land could not be brought into cultivation by ordinary occupiers; it required a large capital.
I cannot say the Jury have done wrong." 

 

Mr. Justice ABBOTT.-" My mind has fluctuated. I was strongly inclined to support the verdict, if it could be supported according to
Law. But I think it cannot. Barrenness so often repeated in the statute, means, I think, the natural quality of the land.
Independent of extraneous circumstances, none of the witnesses say that the soil was bad. Some say it was good, and if they were
wrong they might have been contradicted. If they are right in saying that the soil was good, I think they exclude me, and ought to
have excluded the Jury from saying that it was barren. Several witnesses said that it was worth 40s. per acre, and their meaning I
think fairly is, that it was worth that from its first inclosure. If so, I cannot say that it was barren. I cannot agree that the
Jury from their private knowledge may reject the evidence of credible witnesses. A Juryman may, indeed, give evidence to his
Fellows, but that is quite a different thing. As to the expense of liming, Defendant's counsel argue that that is evidence of its
sterility. I think it is evidence only of its wanting so much lime, and if so, it is immaterial what the lime costs. As to the
Barley, the Plaintiff's case is unanswered." 

 

Mr. Justice HOLROYD.-"I agree that there should be a New Trial. The evidence of Plaintiffs' witnesses that the land was good, if
true, is decisive of the case, in my view of the statute. Now they are wholly unanswered; there is nothing at all to answer them,
except what is said about the expense of liming. But the lime operates to remove integuments and obstructions, and so comes within
the principle of the cases cited. I agree as to the Barley." 

 

It is presumed that the above cause will again come before a Jury at our ensuing Assizes in August next.  

 

 

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