The Times 1811 - 1820 Aug 31 1819 Carlisle Assizes (Sir Frederick Vane v. Rooke [b] )...#17

Aug 31 1819 Carlisle Assizes (Sir Frederick Vane v. Rooke [b] )...#17

The Times, Tuesday, Aug 31, 1819; pg. 3; Issue 10712; col A                                 CUMBERLAND ASSIZES.                             CARLISLE, FRIDAY, AUG. 27.                  Before Mr. Justice BAYLEY and a Special Jury.                                             TRESPASS.                  SIR FREDERICK VANE, BART., V. ROOKE.     [continued] Mr. SCARLETT (with whom was Mr. LITTLEDALE) addressed the Jury for the defendant. They had heard an extraordinary negative proof. It was singular to twist the leave asked of Lord EGREMONT into evidence of the right of Sir Frederick VANE. The evidence to be given for the defendant was, however, consistent with the asking of leave. The claim was not to dig stones or gravel for making new houses or new ways, but for repairing houses, roads, walls, drains, &c. Joseph WAITE, aged 84, lived all his life at Embleton, and saw William THOMSON, farmer of the Abbey, taking gravel from Ling-fell, and mending roads and pavements by it. This was 55 years ago. Cross-examined by Mr. RAINE. - Lord EGREMONT had Ling-fell then. James IRVINE, aged 72, got the stones for ROOKE to build a barn about 40 years ago. Joe BURKITT, about 70, a waller, knew some of the stones in all the houses and walls about the Abbey to have been taken from the quarry at Ling-fell, from their appearance. He was at the building of the new barn in 1781. William BELL saw several cart-loads of gravel carried from Ling-fell to Abbey-farm. John ROTHERHY saw stones got for a wall on Abbey-farm from Ling-fell 26 years ago. Cross-examined. - He gave a subpoena to one of the witnesses; he asked questions of witnesses. James SIMPSON got gravel from Ling-fell for the Abbey-farm. Bell ARMSTRONG also got gravel to repair a path. The woman, HODGSON, blackguarded him: he went to another place in consequence of being discharged by her. Mr. RAINE contended, that if all that was alleged were true, it signified nothing, since it was in no way connected with the knowledge of Sir Frederick VANE, or his bailiff. Casual acts of enjoyment signified nothing as contrasted with one solid interruption. Verdict for the defendant, upon the prescriptive right. The pleadings had been so constructed that the claim was confined to Ling-fell. Some argument consequently arose whether evidence could be given by the defendant, or stones or gravel taken generally from the manor of Wythop. Mr. SCARLETT contended, that since proving a prescription was only proving an ancient grant, and since in proving a grant, evidence of a more extensive right was admissible in order to prove the more limited claim, the same evidence ought to be admitted here. Mr. Justice BAYLEY said, that it had been ruled, and the rule had been uniformly acted upon, that evidence of the exercise of the claim in other parts of the manor was no evidence of the right to the particular part in the pleadings. If the pleadings had claimed the right generally, evidence might be given respecting any part of the manor. Mr. LITTLEDALE disclaimed any part in drawing up the pleadings.

 

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