Saturday 04 Sep 1819 (p. 1, col. 5-6 and p. 4, col. 1-6) CARLISLE ASSIZES, 1819. BEFORE MR. JUSTICE BAYLEY. [continued] RIGHT UPON AINSTABLE COMMON. BAMBER v. BAXTER.—This was a feigned issue for the purpose of trying whether Mrs. BAMBER was entitled to a share of Ainstable Common, now in progress of inclosure, in right of that part of her estate called Nunnery, as well as that known by the appellation of Crosshouses. It appeared that the Commissioners, when making their award, had considered Mrs. BAMBER's property as two distinct estates, Crosshouses and the Nunnery, and that she could alone claim by virtue of the latter. Hence, said Mr. SCARLETT, they have made a great mistake—not in what they have granted, but in what they have denied. The common is the soil and freehold of the Earl of Carlisle. But the plaintiff insists that she has a right upon all commons and waste lands in the parish of Ainstable, though the use she has made of that right has been confined to getting turf and cutting brackens. The right was derived originally from William Rufus, * who founded at Ermathwaite, in the parish of Ainstapleth or Ainstable, a nunnery of black nuns of the order of St. Benedict, and for the support of the black sisterhood, (who were to pray for the salvation of his Majesty's soul, and of the souls of his ancestors) he made various grants of surrounding lands. He should exhibit a grant made in the 20th year of Edward IV. repeating the grant of William: thence originated the right claimed this day; for though at the dissolution of monasteries, the possessions appertaining to them passed to the king, the same property, as would be proved, had subsequently re-issued from the crown.—The real question lay in a narrow compass—what was one estate, had been erroneously considered as two. Various documents were here put in. Mr. Richard ADDISON produced an office copy, from the Tower of London, of the grant of Edward IV., which rehearsed the letters patent of William Rufus, Duke of Normandy, and King of England, giving certain lands to Black Nuns, in honour of Christ and the blessed Virgin, and for the salvation of souls. The grant made use of the term carragate, which Mr. ADDISON thought was 100 acres, and Mr. Sergeant HULLOCK said was only 30. The grant gave a right to the common of Ainstapleth. Mr. HUTTON, Solicitor of Penrith, sworn. The grant which he held in his hand, he obtained from among the muniments of Mrs. BAMBER. It was a grant, under the great seal, 6th Edward VI., to William GRÆME, of "the house and site of our late priory of Ermathwaite, in the county of Cumberland, and of all houses, edifices, gardens, &c. belonging to the said nunnery, to be possessed as fully and freely as by the late prioress or any of her predecessors." Mr. HUTTON.—The manor of Ermathwaite is the same place as what is called the Nunnery—now the property of Mrs. BAMBER. The next document was a deed, dated 28th October, 1698, between Charles Earl of Carlisle on the one part, and John AGLIONBY on the other part, for the regulation and settling of the manor of Ermathwaite, commonly called Nunnery, and a grant of all waste grounds, 187 acres, in Ruckcroft pasture, (part of Ainstable Common.) Evidence was then gone into at great length. Thomas MORLAND, aged 78, deposed that the sheep belonging to the Nunnery went upon Croglin fell, from whence they were brought upon Dairy Farm and clipped, and then turned out upon Ruckcroft Green, the first place as you come upon the common, and forming part of it. John IRON, aged 59.—Has known Ruckcroft ever since he was a boy; it is part of Ainstable Common. Remembers when the farm house and buildings were erected upon Cross Close, and now called Crosshouses. Isaac FLEMING rented the Dairy Farm, part of the Nunnery estate, where he has seen the sheep, and from whence they were turned upon Croglin fell.—Crowdyknow was always let with the Dairy Farm. Josiah FLEMING, of Carlisle, aged 49, remembers his father, Isaac FLEMING, who lived upon the Dairy Farm, turning his sheep upon Coombs Pike, part of Ainstable Common, 50, 60, 70, or 100 at a time, without interruption—they were clipped at the Dairy Farm. His father failing rather in his rent, Mr. AGLIONBY exchanged land, built Crosshouses, and transferred him thither.—Crowdyknow was part of the Dairy Farm. William GRAHAM, of Carlisle, lived at Nunnery many years. Two idle horses were turned out upon the Common every summer, and were never kept upon Crosshouse Farm; always at Nunnery. John HETHERINGTON knew the late Mr. BAMBER. He bought sheep when holding the Nunnery in his own hand, of one GRAHAM, about 16 years ago, which he kept from Martinmas to Lady-Day. Witness has seen these sheep upon the Nunnery ground, and upon the Common; they had a rake (a gap) upon it. William TATE, aged above 60, has known Nunnery estate since 1781 or 1782. On one side, the Dairy Farm comes up to the pleasure grounds, and on the other goes to the Eden. Remembers, in 1786, when nobody lived on Nunnery estate—it was then under care of Mr. YATES, who had a steward under him, and witness was under that steward. Witness took the Nunnery farm for a term of four years; it then consisted of about 100 acres.—Crowdyknow did not at that time belong to the Dairy Farm. Several other witnesses gave evidence to the same effect, and also deposed that turf and brackens were frequently cut upon the Common and brought to the Nunnery and there used. Mr. Sergeant HULLOCK addressed the Jury for the defendant in a long and able speech. If the evidence adduced could give a right of common, he thought any thing would entail that privilege. As to the original grants, which were so much relied upon, his Lordship and the Jury would recollect, that in the reign of Henry the VIII., all monastic property became vested in the Crown, and therefore all rights and privileges belonging to it must have been extinguished. Mr. Justice BAILEY.—They would be extinguished, provided the soil of the common belonged to the crown. Mr. SCARLETT.—The Act of Parliament (Act of Inclosure) states the right of soil to belong to the Earl of Carlisle at this time, who, I suppose, had a grant from the Crown. Mr. Justice BAYLEY summed up the evidence strongly in favour of the plaintiff, whose right he evidently considered fully established. There were three counts, and a claim of right of common was made—first, collectively for the Nunnery estate, and then for particular parts of it. The strongest evidence of a right, is the exercise. It was natural to expect that the persons who had a right upon the common would have been on the watch, and would have resisted encroachments, if they had thought any made. But it may sometimes happen that a perfect right is not exercised, because the holder of the estate may not have stock fit to turn upon a common.—But what may be encroachment at first, will become right if exercised 20 years. The Jury, without hesitation, found a Verdict for the Plaintiff on all the issues, Damages, 1s. Cost, 40s. ---------------------------------------------------------------------------------------------------------------- * "Nunnery, the beautiful and romantic seat of R. BAMBER, Esq. is situated about two miles to the southeast of Armathwaite Castle. The mansion is a plain neat structure, fronted with red stone, it was erected on the scite of an ancient religious house, established by Wm. Rufus for Benedictine nuns. In the reign of Edward the Sixth it was granted to W. GRAHAM, a branch of the GRAHAMs, of Netherby, from one of whose descendants it was purchased in the year 1690, by Sir John LOWTHER, Bart. who some time after exchanged it for the manor and castle of Drumburgh, with John AGLIONBY, Esq. whose successor, Henry AGLIONBY, erected the present mansion; but the chief improvements in the grounds were made by the late Christopher AGLIONBY, the last heir male, and his sister, the present Mrs. BAMBER.—Topography of Cumberland. ---------------------------------------------------------------------------------------------------------------- [to be continued]