[list-cumbria] Carlisle Patriot, 04 Sep 1824 - Westmorland Assizes (5)

Tue Mar 18 19:29:05 UTC 2025

Saturday 04 Sep 1824   (p. 4, col. 1-6)

(WESTMORLAND ASSIZES: CONTINUED.) 

Monday, 31st August. 

PARKINSON v. COLINS. 

Special Jury. 

[continued] 

Mr. SCARLETT replied in one of the most masterly speeches ever delivered in
a Court of Justice.—If the cause was to be decided according to the
evidence, as no doubt it was, he should now speedily obtain a verdict at the
hands of the Jury; for never did there appear to him so clear a case of
disputed title. All that he asked of them was a dispassionate review of what
had been proved on the one side, and what the other had failed to prove: but
before he went into an examination of the evidence, he wished to say a few
words in respect to the predicament in which the noble plaintiff found
himself when compelled to contend here for a stake of so little value; and
this was the more necessary on account of the observations of his learned
friend Mr. WILLIAMS. He (Mr. S.) did not think that any one at all
acquainted with the noble Earl, would believe that he came here from a fear
for the safety of his grounds, were Mr. WYBERGH securely established in the
station which he battled for. But the Jury could not shut their eyes to the
fact that the real question in this case, was not a mere island of the
extent of an acre, producing less than twenty pounds worth of wood, but the
whole course of the river Lowther. The remarks made by his learned
friend—Mr. BLEAYMIRE's evidence that Lord Lonsdale's attorney (Mr. HARRISON)
had written the word 'island' upon his plan of the lesser portion of the
ground inclosed by the mill-race for the sinister purpose of making it
answer the deed of conveyance—all showed the animus of the other side, and
indicated any thing but friendly feeling and good neighbourhood. The reason
why this had been so written was evident—those who went to frame that plan
knew nothing about the nearly obsolete names of the various places which
they had to describe; and what was written, instead of being an act of
concealment, a piece of dupery, was done with the knowledge of the viewers,
of the defendant's advisers, and the same plan had been in the hands of the
learned Judge from the commencement of the cause! His learned friend made an
attempt to prove a right of fishing, which shewed that the defendant's claim
embraced the whole of the waters of the river Lowther; for aught he (Mr. S.)
knew, the manorial rights of the conveyed manor of Clifton. His learned
friend had shewn that he could make this pretty tolerable grasp, although
his arms were not much longer than Mr. WYBERGH's. But Mr. WYBERGH had this
day called forth evidence in respect to those rights which he by this time
wished, most probably, had not seen the light. The mortgages mentioned in
the deed produced, were three in number. The demesne lands were excepted at
first; these were not redeemed; more money was subsequently borrowed;
litigation takes place, which terminates to Mr. WYBERGH's ancestor's
disadvantage; and, finally, for the sum of £400, given him, in the terms of
the deed, of "Lord Lonsdale's free will and condescension," he signs away
his whole manorial rights—a fact which might have slept among the muniments
of Lowther but for this claim upon a paltry island. Thus was the manor of
Clifton seen to have been conveyed to the LOWTHER family by as clear a title
as Mr. WYBERGH held his estate,—thus had he shewn that the whole water of
Lowther, which he claimed by calling evidence to the point this day, was
conveyed to Lord Lonsdale's ancestor anterior to the year 1706. But, then,
the Island. How many were there conveyed? Mr. WILLIAMS had not called a
witness who had not shewn that two islands always existed. In the exceptions
and reservations of the deed of 1706, only two islands were reserved to Mr.
WYBERGH, including the Nisbut-holme. One of these lies a mile farther down
the river, and was bought by Lord Lonsdale in 1814. Having sold one, is he
still entitled to two? Certainly not; but if his claim of to-day should be
granted, he would get one more than he reserved. His own witnesses had said
that two existed, in nearly their present state, as long as they remembered.
With this before them, the Jury would know how to spurn the insinuation in
regard to the plan. Mr. WYBERGH could not be entitled to more than one; and
that one the smallest of the Mill-holme islands; the difference in the
quantity of land was but a trifling objection, for besides (as his learned
friend had observed) the inaccuracy of old deeds as to measurement, the
operations of time and the river might have produced very essential changes.
In early times, he presumed, the Mill-holme belonged to the adjoining main
land. When the mill-race was turned off, that branch of the river was
probably nearly dry; but when returned to the parent stream, then water ran
where scarcely any was to have been found in ordinary times.—Mr. SCARLETT
argued this point at some length, but we have not room to follow him
throughout. In reference to the 10d. he did not think it necessary to prove
its receipt, after the award was admitted, otherwise he had prepared to do
it. The only objection that Mr. WILLIAMS had made to the document was the
spelling of the word "elonde." If that was all, desperate indeed must his
case be. He seemed to think that "elonde" was not "island;" he might as well
have said "moyen" did not represent "mean." Let him consult his Chaucer. The
language of the award still further elucidated the question. The large
island was called Eller-Holme—that is to say Alder-Island, "eller"
signifying alder, and "holme" being a Saxon word for "island." It was also
called "Clifton Fitt Island." Here was another elucidation. What other
island could this apply to?—what other island fit into the adjoining bend of
that name? He declared to God that he never saw a clearer care [sic] since
he wore a gown. Every man of common sense—any man who could snuff a
candle—must admit its conclusiveness. If the other side had before seen the
deed, the award, would any one believe they would have set up their claim of
to-day? We have the hand of one of Mr. WYBERGH's own ancestors to a document
that the mid-stream then bounded the two manors: he afterwards makes an
exception, not of this island, but of two others, one of which has been sold
and signed away.—Mr. SCARLETT then urged the great strength of the
documentary evidence, and most acutely analyzed the parole testimony in
favour of the claim, showing its numerous and glaring contradictions: almost
every witness, he contended, contradicted the other: what one asserted the
other negatived; and he cared not which was attended to. He did not intend
to impute perjury: but they were evidently mistaken. The evidence that he
had heard this afternoon brought to his recollection a case which happened
in the neighbouring county of Lancaster. The dispute related to the
situation of a hedge: 50 witnesses appeared on each side: 54 swore that the
hedge was in one place, and 50 that it was in another. One of the greatest
lawyers that ever presided in an English Court of Justice had said, that
when evidence of usage was conflicting, Juries should give weight to title.
The lapse of time had deceived them; but if some of them, like James
ELLIOTT, had gone and taken another view of the islands, they probably would
have escaped much error.—Mr. SCARLETT concluded a speech of an hour and a
quarter, by repeating what he stated at the outset, that the action was not
for damages. Lord Lonsdale was well aware that the trespass was committed
with the sole view of trying the right; and in coming into Court the Noble
Earl had no object but to meet a Gentleman on the ground of a Gentleman. 

In answer to a question from his Lordship, the dimensions of the large
island were stated to be 2r. 32p.; of the small one, 21 p. 

[to be continued] 

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