Saturday 04 Sep 1819 (p. 1, col. 5-6 and p. 4, col. 1-6) CARLISLE ASSIZES, 1819. BEFORE MR. JUSTICE BAYLEY. [continued] RIGHT OF WAY. KITCHEN v. WILDE.-Mr. TINDAL opened the pleadings. Philip KITCHEN, clerk, is the plaintiff, and John and Thomas WILDE, the defendants, against whom this action was brought, they having cut down a certain gate-post belonging to Mr. KITCHEN. The defendants first plead not guilty, and, in another plea, they say, that seised of a certain fold they have a right of way through this entrance to use it, and also in right of another close. The plaintiff asserts that they possess no such right, and that if they do, they have done more than was necessary to assert it. Mr. RAINE addressed the Jury. This is an action brought by the Rev. Philip KITCHEN against the defendants for a trespass committed upon a part of his premises in the assertion of a right of way: the questions to be tried were, 1, whether the defendants had such right or not, and, 2, whether, supposing they prove that to be the case, they have not done unnecessary damage. Mr. KITCHEN was born in Millom, and for some years officiated in Liverpool, and no one is more respected either in that town, or in the place of his nativity. A few years ago, he succeeded his brother. The only entrance to Mr. KITCHEN's house is by the gateway in question, where Mr. K. wishing to beautify his residence, erected an handsome gate, one of the posts of which stood in his own freehold, and is the post which the defendants had thought proper to cut down. We admit, said Mr. RAINE, that they have a right of passage this way to a field called Mire-close, but not to another close, for which they claim, called Benridding-fold. That there was no road this way to the latter, will be proved by the strongest possible fact, of a wall having been pulled down by persons who occupied it, for the purpose of leading corn away. In asserting the claimed right, Mr. WILDE was not satisfied with throwing the gate off its hinges, or digging up the post, but he must cut it down forsooth! It should be stated, however, that the real defendant in this action, is a Mr. JACKSON, who has purchased the property-and the spirit by which this gentleman is actuated will appear by a letter which I shall presently read to you. After the trespass had been committed, the plaintiff's attorney wrote to the defendant, informing him that unless reparation were made for the damage, Mr. KITCHEN had given instructions to bring an action against him. This letter was handed over to Mr. JACKSON, and thus that gentleman thought proper to express himself of a respectable clergyman:-"You are employed by a malicious, vindictive, and litigious scoundrel, and his action is founded upon the same principles as himself!" Founded on the same principles as himself! gentlemen, sarcastically added Mr. RAINE. Is this fit language for one man to hold towards another? Thos. MARTIN, a joiner, knows Mr. KITCHEN's house at Dundraw, parish of Millom, very well; he also knows John and Thomas WILDE, whom he saw cut down the gate-post with an axe. They both came together, and John said to Thomas, "Get forward and down with it!" Thomas then took off his coat and waistcoat, fell to work, and cut the post down. Robert ATKINSON has known Underhill and Benridding 40 years. Mr. KITCHEN came to live there about seven years ago. About five or six years ago, in making alterations, that gentlemen took a great piece off his garden ground, and converted it into field quite up to the road. Cross-examined. He never saw a gate at this place before Mr. KITCHEN put one up, but has seen rails there. There is a watering place within the gate, but witness never saw any other cattle at it than Mr. KITCHEN's, except what were driven off. There were hemp dubs here, which were said to belong to the whole township, but he never saw them used. Wm. TROUGHTON, aged 48, when taking corn from Benridding had to break a gap in the fence, in order to lead it through the way now claimed-and witness never recollects a gap being there before. Mr. KITCHEN and witness's father were always on good terms, and they were permitted to go by the green (the road in question). Never knew a gate leading from Benridding to the green. Cross-examined. His father occupied the closes from 1770, till within a few years. He always had a right of way to Mire-close.-(This witness was affected even to tears while giving his evidence. He was asked if any thing disagreeable had been said to him, or if he was unwell? He replied neither. It was supposed that the recollection of "better days" and of his father's death about which he was interrogated, were the source of his grief.) Resumed. He was always told to make up the gap when they made it to the Mire, and the Benridding gap they walled up. John TROUGHTON, brother to the last witness, lived near the spot 37 years, up to three years ago. Witness's father (who died nine years ago this spring) once had a pig trespassing upon the green, and Mrs. KITCHEN set a dog upon it, which tore out a lump from the hind quarter. Mr. RAINE.-Ah, a new way of cutting a pork chop! At this time the pigs exposed for sale in the fair, just outside the court, were setting up their pipes most lustily, to the no small annoyance of wigs and gowns-no very pleasing accompaniment to brief-reading.- Mr. RAINE.-Pretty music! Mr. Justice BAYLEY.-They seem now to have hold of the hind quarter. Mr. Sergeant HULLOCK.-Yes, my Lord,-they are a little impatient,-they expect to be called to give evidence. Mr. SCARLETT.-I wish we had the dog here, to touch their hind quarters. Mrs. Elizabeth KIRBY, sister to Mr. KITCHEN, was born at Underhill, where that gentleman lives; resided there 33 years, and is still in the neighbourhood. Has known rails up between the fold and the road ever since she can remember-they were put up to keep cattle out. Miss Elizabeth MARTIN is niece to the plaintiff. Mr. Justice BAYLEY.-How old are you? Miss MARTIN.-Twenty-seven, Sir. Mr. RAINE.-My Lord, you are a bolder man than I am-I dared not to venture upon that question! Miss MARTIN was a constant visitor at her uncle's many years, before the gate was erected, and there were always rails up-she recollects it well-she used to stoop under them. Mr. SCARLETT addressed the Jury for the defendants. He understood that some of them had seen the place in question, and they would be the better able to apply the evidence. He was surprised that Mr. KITCHEN had taken so much pains to show that he had removed his garden wall to widen the road. Mr. KITCHEN seemed conscious, judging from the pains taken, that the soil whereon the post stood, does not belong to himself. His own witnesses cannot prove that he actually put it down in his own freehold. Mr. Justice BAYLEY said that he was surprised that the liberum tenementum of Lord Lonsdale was not pleaded. Mr. LITTLEDALE submitted that this was not essential. He had consented to alter his pleas at the instance of the other party. He first had met the question in every variety of way-in no less than 14 pleas (laughter)-and he must appeal to the candour of Mr. TINDAL.- Mr. RAINE.-Oh, we can have no appeals to candour. Mr. SCARLETT.-This talk about pleadings must be very entertaining to you, Gentlemen of the Jury. What my learned friend Mr. LITTLEDALE means by pleadings, in every variety of way, is to put all the nonsense possible upon parchment, and then leave the judge to find out the meaning of it if he can! Mr. SCARLETT continued.-There was abundant proof of the right of way. The late Mr. KITCHEN erected a peat-house upon the green, which all the tenants in the township insisted upon his removing, and he did so. If he had the exclusive possession, why pull the peat-house down? There was a stream of water on the spot, and he would show that the cattle of the village watered there. He would further show that in times past, when hemp was cultivated, that the hemp dubs were the common property of all. Mr. Justice BAYLEY.-Even if the soil and freehold are Lord Lonsdale's, you have no right to cut down the post. Mr. SCARLETT.-On that point, my Lord, I feel a difficulty. It would have been quite sufficient to have taken it up and laid it down. Mr. Justice BAYLEY.-The result will be, that there must be a verdict against you, with 1s. damages. Mr. SCARLETT.-I feel I cannot make a justification of cutting down the post. But I cannot abandon the other pleas. Mr. Justice BAYLEY.-Then you must show that the right of way commenced in Mr. KITCHEN's time. Mr. LITTLEDALE.-In giving evidence of a right of way, you always plead prescriptive grant. Mr. Justice BAYLEY.-Clearly not. Where I see that there is a prescriptive right only, should I be warranted in telling the jury that there was a grant besides? Mr. SCARLETT.-The verdict here, my Lord, must be upon a new assignment. If I were at liberty to advise my client, I would not recommend him to acknowledge Mr. KITCHEN's right in the soil. Mr. LITTLEDALE.-If I had not been prevailed upon to alter my pleas, I should have met the question in all shapes-(With great warmth) I will never in future alter my old plan to please any one. Mr. TINDAL denied that there had been any violation of faith in the arrangement of the pleas. It was finally agreed, that a verdict for the plaintiff should be taken upon the general issue, damages 40s., the jury discharged from giving any decision upon the special pleas and new assignment. [to be continued]