[list-cumbria] Carlisle Patriot, 04 Sep 1824 - Westmorland Assizes (1)

[petra.mitchinson at doctors.org.uk]

Saturday 04 Sep 1824   (p. 4, col. 1-6)
 
[This article started obviously on page 3, which is missing on the BNA
website.]
 
(WESTMORLAND ASSIZES: CONTINUED.) 
 
To give the missing context, I have transcribed the beginning of the court
case from the Westmorland Gazette of Saturday 11 Sep 1824 (p. 4, col. 2):
 
 
Monday, 31st August.
 
PARKINSON v. COLINS.
 
Special Jury.
 
Mr. SCARLETT addressed the Jury. Notwithstanding the names of the Plaintiff
and Defendant in this action, it was in reality to decide a right of
property between Mr. WYBERGH, the owner of Clifton Hall Estate, in this
County, and the Earl of Lonsdale. The matter in dispute was an Island,
situate in the river Lowther, and which it seems had been the subject of
discussion at a very early period. In the reign of Henry the Eighth in the
year 1500, a dispute having arisen between DUDLEY, the Lord of the Manor of
Yanwath, and Mr. WYBERGH, of that day; this Island was awarded to the
former, in whose family it remained until 1664, when the Lordship of Yanwath
was sold by Christopher DUDLEY, to the LOWTHER of that day, and the two
Manors of Yanwath and Clifton were then declared to be divided by mid-stream
of the river Lowther. In 1706, Mr. WYBERGH of that time conveyed the whole
of the Manor of Clifton, with certain exceptions, to Sir James LOWTHER, for
sums of money lent to him at various times; so that both Manors are now
vested in the present Earl of Lonsdale. The learned gentleman did not know
what instances of usage his learned friend Mr. WILLIAMS intended to set
up—there might have been an occasional trespass, but he (Mr. SCARLETT) would
satisfy the Jury in such a manner as would entitle him to their verdict. ...

 
W. NICHOLSON.—I am Steward to the Earl of Lonsdale and know the Island in
dispute, and the lands on each side; Clifton is on the East, and Yanwath on
the West of the river Lowther. The land on the West is called Wood House
Farm, and occupied by W. PARKINSON. 
 
Cross-examined by Mr. WILLIAMS.—On the East side of the river Lowther is a
piece of Land called Mill Holm Bank, adjoining a field called Mill Holme.
The river runs from South to North. On the West side of the river is an
Island called Wybergh Island, which Lord LOWTHER purchased in 1814, it is
about three Acres. 
 
An award was here put in and read, dated 1500, from which it appeared that
in that year, divers disputes had arisen between DUDLEY, the then Lord of
the Manor of Yanwath, and Mr. WYBERGH, of that day Lord of the Manor of
Clifton, and by which the Island now in dispute, together with other
property, was awarded to the former. 
 
A conveyance was also put in and read dated 1664. This was a conveyance of
the Lordship and Manor of Yanwath, by Christopher and his wife, Agnes
DUDLEY, to the LOWTHER of that period, in consideration of a certain sum of
money. 
 
Also, another conveyance dated 1706. This was a conveyance of the Lordship
and Manor of Clifton, by Mr. WYBERGH, of that day, to Sir James LOWTHER, in
consideration of various sums of money advanced to the said Mr. WYBERGH, by
the said Sir James LOWTHER. 
 
Re-examined.—The property which Lord Lonsdale bought in 1814, joins the main
land, but has the appearance of having formerly been an Island, and as if
the channel had been changed. 
 
[So far the Westmorland Gazette. I have not transcribed the report of the
witness examination by the counsel of the plaintiff. The Carlisle Patriot
report apparently starts (on page 4) during the introductory speech by the
counsel for the defendant.] 
 
Richard LOWTHER, and his successors being unable to redeem the mortgage, the
manor of Clifton was conveyed away for a consideration, on the 30th May,
1706, to Lady Catherine Dowager Countess of Lonsdale, to hold for her son
then a minor; but in this deed were the exceptions of Clifton-hall, &c., a
parcel of meadow called the Croft, lying to the west of the Kendal road;
also Hawks-house Croft, Trough Roods, Mill-holme, Applegarth, Scarbutts,
Bartree-Flat, Hallbank-wood, Turtland, Middle-close, Low-close, Wybergh
Island, 'the Island on the west side of Lowther water.' So that the Jury
would see an express reservation of an island on the west side of Lowther
river, a situation which the other side contended was prima facie evidence
of the plaintiff's right. Wybergh Island had been sold to Lord Lonsdale in
1814; up to that date, therefore, the mid-stream had not been the boundary
of the manors of Clifton and Yanwath. There the language of the deed was
followed in the minutest point. And the same document excepted another
island called Mill Island—Mill Island, he begged the Jury to understand—and
not the isle of the Pots and the Pans;—and whether Mill Island meant the
spot in dispute was the question the Jury must decide. Those who got up the
plaintiff's case, had found it necessary to account for the language of this
deed, dated two centuries after the award. He would prove that a small bit
was shown to the Jury, and laid down upon the plaintiff's plan as an island,
marked "island, 3 roods," was no island at all, but a small piece of land
that had been anciently intersected by the mill-dam, and was part of the
Mill-holm.—Mr. WILLIAMS then detailed the acts of ownership which he
intended to prove in evidence, which were numerous and decided, he said, and
extended backwards sixty years. The assumption that the large island was
Ellerholme, because productive of alder trees, was absurd in a region where
alder every where abounded; even the Elysian Fields, as they were called
with perhaps just allusion, abounded with alders only 22 years ago. It had
been stated on the other side, that their imperfect evidence of ownership
resulted from the extreme carelessness of the late Lord Lonsdale in respect
to his rights. Credat Judæus! Of the dead, however, he would not say any
thing in disparagement: de mortuis nil nisi bonum: but the records of the
northern circuit shewed, unless he were mistaken, that it was not very
difficult to induce him to bring actions of right, and that those whom he
employed were any thing but idle lookers-on, from Jack FAGGOT the Observer,
down to Jack MEGGOT the Carver. (A laugh.) His learned friend had forgot to
prove the receipt of the 10d. which was to have been paid on account of the
mill-dam. This was very extraordinary indeed—the more so, as it was
exceedingly difficult to make his learned friend forget any thing that ought
to be remembered in a case of this kind. He should not have an opportunity
of again addressing them; he would therefore observe that the defendant, as
well as the plaintiff, wanted no more than his right. Thus much he might say
for Mr. WYBERGH, who understood the duty of a subject too well to expect
more of the laws of his country. 
 
 
[to be continued] 
 
 
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