Star.
London, England, 1803-01-28 00:00:00


!iron wliisli fire mo.v.:sl it, namely, that the
by the Plaintiff at the !aft Vote
Ifues, seas contrary to the preponderance of evi•
knee, and that d Ellenhorough had at the time
rci"siisd to admit certain records as evidence, which
crmccived ought to have been admitted. The
nesiSsojeant pi incipally direned his argument
to prove that there was a vaft 'preponderance of
evidence on the fide of the Defendatt. By Lord
Ellenborough's report of the ti ial, which was read
yellerday, it appeared that this was ;in ejectment
brought by the Duke of Norfolk, as truce to the
late Lord Petre, (who was Lord of the Manor of
Hint ini,) againß the alendant, who is Lord of
the Manor of NI kin, for a piece of ground ia.
chifed by the Defendant from a:large moor, which
seas in common to both Manors, called Mafpin
Moor. There was a great deal of evidence pro-
duced on bath ides, as to a.ls of ownerlhip of the
foil ; but the Learned Serieant contended that the
a‘fts done by the Manor of Birkin, which the De-
fendant reptelented, were infinitely fuperior to
thole proved on the part of the Plaintiff. It ap-
peared, from the evidence, that the tenants of the
Defendant's Manor had been accullumed, from
time immemorial, to turn their cattle upon Mal-
pin Mon r. It was in evidence, that for more than
a cebtury there have been regular bridges from
the inclofures on.the Defendant's Manor to this
Moor ; it was alio proved, that there now exills
a railed bank, or ram, (as it is called in York hire)
which tradition fays was railed by the people of
the Defendant's Manor as a boundary, and which
exifls to the prefent day. The Defendant's wit-
;ldles all agreed, that this bank or cam was always
reputed the boundary againft thofe fubffantial
ails of ownerff.ip on the part of the Defendant ;
he confidered that hardly any thing was oppofed
on the part of the Plaintiff, except that the people
of Hilham had been accuflomed to drive and im-
pound the cattle on the whole Moor, particularly
at the time of an annual fell? they held at Whitfun-
tide. As for thefe drivings, however, it might as
well be confidered a drunken frofic of a lawlefs rab-
ble, as a deliberate a£t of ownerthip ; the faEl was,
that the cattle fo driven and impounded were releafed
at fo cab a rate, that it was hardly worth the
while of any farmer to refift it. A few pence was
ufually the price of difcbarge. The Learned Ser.
jeant then contended, that thole driving: of the
common, which had been mainly relied upon by
the Plaintiff, were very flight evidence of owner-
fhip of the foil, in comparifon to thole weighty
and important aits of ownerihip he had Rated on
the part of the Defendant.
Mr. Houtoro, on the fame fide, dwelt entirely
on the point of Lord Ellenborough's having re-
jeCted at the trial written evidence, which he ar- '
gued very powerfully ought by law to have been
received.
Mr. PARK, on the part of the Plaintiff, replied
aril to this point made by Mr. Holroyd. and con-
tended
that this evidence was inadmiffible. He
was proceeding to the other (ignition, the prepon-
derance of evidence, when he was Rope by the
Court, who were unanimoufly of opinion that
there was not fuch a preponderance as would juf
tify the Court in letting afide the verdiet of the
Jury. The Court were alfo unanimoufly of opi-
nion, that the written evidence which Lord Ellen-
borough rejefted he was bound to rejeet (inafmuch
as it was tendered to him in a Rage of the caufe
when it was inadmiflible). As to the other point,
the preponderance of evidence, the Judges 'gave
their opinion on that with Come fbades of diffe-
rence.
Lord EL L ENEOROUGH was Pill of opinion that
the drivings of the Common uninterruptedly on the
fide of the Manor which the Plaintiff reprefents,
and never by the Manor which the Defendant re-
prefents, amounted to a proof of ownerfhip fupe-
rior to what the Defendant advanced; he there-
fore thought the finding of the Jury right on this
point.
The other three judges, Sir NASA GROSE, Mr.
Jußice LAWIENCEg and Sir S. Lc BLAN C, were'
of opinion, that as to the merit:, there was a great
deal of evidence on tab fides, and that perhaps it
was dout:ful on which fide the weight of evidence
was ; but that certainly it was not fo preponderant
on either fide as to allow the Court to let afide the
verdk't of a Jury.
Sir SIMON Le BLANC laid, he was not prepared
to pronounce that the weight of evidence was againa
the verdiSt, but certainly there was not that great
preponderance of evidence againft it, which would
allow the Court to let it afide. He concluded by
obreiving, that it would not be much to the pre-
judice of the patties to try it again by a frrlh yea
went —The rule was difclnsrged. ,