[list-cumbria] Carlisle Patriot, 04 Sep 1824 - Westmorland Assizes (6)

[petra.mitchinson at doctors.org.uk]

Saturday 04 Sep 1824   (p. 4, col. 1-6)
 
(WESTMORLAND ASSIZES: CONTINUED.) 
 
 
Monday, 31st August. 
 
PARKINSON v. COLINS. 
 
Special Jury. 
 
[continued] 
 
Mr. Justice BAYLEY summed up at considerable length, but at the request of
the counsel on both sides, did not go through the evidence in detail. He
commenced by explaining the nature of the action; and both plaintiff and
defendant, he was sure he might say, laid little stress upon the mere
pecuniary value of the thing, which was only a trifling consideration to
either. He though [sic] they should at the outset dismiss from their minds
two of the points that had been raised by the defendant—the landing of the
nets on the island, the least satisfactory of all evidence of right, as
fishermen were well known to consult their own convenience merely on such
occasions; and the fencing of the land near the river, an act not at all
decisive, for the object of the farmer was most likely the two-fold-one of
keeping his own cattle in and other person's cattle out, especially as the
pasturage of the island was worth nothing, and he had free access to it by
means of a wicket. The documentary evidence on the part of the plaintiff was
strong. The award had some weight; but the deed of 1706 much more; and, in
fact, would be decisive of the question if it had been followed by acts of
undoubted ownership; but there was a doubtful lapse left to conjecture, and
all the circumstances of the case should be carefully considered to assist
them in their determination. They would have observed that two islands were
spoken of in 1706, and one of them was described to be an acre in extent
more or less. The larger island was only two roods thirty-two perches; but
if both were added together, the quantity was complete; and might not the
river, in the course of time, or might not some natural convulsion, have
separated the island in two? The only thing which went to contradict this
theory, was the term "Far Island," and that certainly would seem to imply a
division at a remote period, for the word "far" was relative, and in this
case meant not "distant," but related to the position of one thing beyond
another. The various names of the islands were puzzling, and confused rather
than elucidated. In respect to usage, the evidence was certainly strongest
and most numerous on the part of the defendant; but then the documents must
be thrown into the scale. The Jury might think it not unreasonable to assume
that a re-conveyance had taken place to the WYBERGH family subsequent to
1706: it might be said that if this had been the fact, some proof of it
would be forthcoming on the part of the defendant; there was not, however,
any such proof, and when so much was left to conjecture, this was perhaps
not an unwarranted speculation. The main point in favour of the defendant,
in his opinion, was the quantity of both islands. If the jury, looking at
the documents, should think that both were originally one, their verdict
would turn on that opinion. What changes there might have been effected by
the stream no one could tell: they could not be quite sure that the small
island was an island at all until the alteration of the mill-dam. Those
gentlemen of the jury who had had the advantage of a view would be best able
to satisfy the doubts which he thought it his duty to start, and they would
of course impart all the requisite information to their brother jurors. The
burden of the proof lay with the plaintiff. If he established his claim, the
verdict must be in his favour. If, on the other hand, he had failed, the
negative evidence should be liberally construed for the defendant, and he
was entitled to their award. 
 
The Jury retired, taking with them plans and documents, and after an hour's
absence returned with a verdict for the Plaintiff, damages £3, costs 40s. 
 
We understand that, with the exception of one, they were unanimous in
opinion, from the moment of leaving the box. 
 
The trial commenced a twelve o'clock, and ended at half-past nine: the court
was excessively crowded, for circumstances had given the question a blue and
yellow character, and excited considerable personal feeling. 
 
 
[to be continued] 
 
 
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