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Northumberland

‘ATTEMPTED LAND GRAB ON ROTHBURY COMMON’

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In the Parish of Rothbury, owners of burgages (houses) and crofts, had for many decades, if not for several centuries, the right to graze their livestock on Rothbury Common. However, a certain landowner tried to change this in the early part of the 19th Century by attempting to enclose part of the Common for his own use.

As you can imagine, this did not go down well with the local populace and resulted in one local man, William Bolam (owner of a house, land and innkeeper of the Star Inn, all in the Parish of Rothbury) taking a civil court action against the land grabber, Adam Atkinson of nearby Lorbottle House.

Amongst the archives of Alnwick solicitors, Dickson Archer and Thorp, are bundles of papers representing the evidence gathered for the legal battle. Included in the bundles is a transcript of the court case.

The case was heard in the Nisi Prius Court (a hearing of civil cases before a judge and jury), part of the Northumberland Summer Assizes held in Newcastle upon Tyne and heard before Mr Justice Bailey on Thursday, the 16th August 1827. Representing William Bolam (the plaintiff) were barristers Brougham and Weightman and for Adam Atkinson (the defendant) were barristers Williams; Parke and Cresswell.

Mr Weightman (the junior barrister for the plaintiff) opened the proceedings by stating that ‘the plaintiff was in possession of a house and land in the Parish of Rothbury which gave him the Right of Common on the waste called Rothbury Common for his cattle, couchant and levant, namely horses, cows and sheep’. He went on to declare that ‘the defendant had put eight hundred sheep upon the said Common and had built a certain line of wall to the great injury of the Common and further prejudice of the said plaintiff’s right’.

The plaintiff’s senior barrister, Mr Brougham, then addressed the court with further detail of the circumstances – ‘Mr William Bolam, being in possession of a house, garden and a croft of land at Rothbury, had a right to graze his cattle on the Common there and had brought this action against Adam Atkinson Esq. of Lorbottle because not being content to enjoy his Right of Common like others possessed of a burgage tenement, he had thought it expedient to enjoy his portion by enclosing it and accordingly built a wall across part of the Common’. He went on to state ‘by this mode of proceeding, Mr Atkinson had added a large tract of land to his own estate, which was adjoining, without the formality of buying in the usual way’.

Mr Brougham went on to state that over a number of years, Mr Atkinson had annexed a considerable tract of land called Threap Ground, which was considered as ‘debateable ground, it may belong to Lorbottle Common or it may belong to Rothbury Common, at present we will say nothing about that but the land below the Threap Ground was never disputed, it has always been known to be Rothbury Common’. Continuing, Mr Brougham stated that Mr Atkinson then decided to annex the better land below Threap Ground, first ‘he took in 42 acres more. He then went to the Bank Head Shank and there having only 402 acres, thought he would go a little to the southward and take 420 acres more 

 he gave directions for the building of this wall which was to enclose his part from the rest’. At this point, Mr Brougham informed the court that Mr Atkinson’s actions reminded him of the early settlers of North America that ‘when they want a piece of ground, they just sit themselves down on the corner of a neighbour’s estate and exercise this sort of possession for twenty years’ adding that ‘everybody knows that twenty years possession gives a right of property’. Mr Brougham carried on for several more minutes with various points of common law rights concluding with ‘
. to stop them before they get their enclosure completed. We do not seek to recover damages but to beg the question of right’.

His colleague, Mr Weightman then took over by calling a number of witnesses to be examined by giving historical evidence as to the use of the Common including the land that had been taken by Mr Atkinson. All of the witnesses for the plaintiff stated that the land in question had always been part of Rothbury Common and that those that qualified had always grazed their livestock on it.

Mr Weightman called Edward Smith, a local surveyor who stated that he had earlier been employed by Mr Atkinson to make a plan of Lorbottle Estate. Mr Smith stated that Mr Atkinson had told him ‘
.. to get a person who knew the boundaries to point them out to him’.

This plan, was produced to the court and accepted by Mr Smith as the one that he had drawn up with the assistance of a Mr Balmer (now deceased). Mr Smith pointed out that the green line on the plan was drawn by Mr Balmer’s direction and excluded the Threap Ground. Continuing under oath, Mr Smith said that when he showed Mr Atkinson how far he had gone, Mr Atkinson was dissatisfied. At this, Mr Brougham said ‘Aye, aye, he was not pleased at that, he had not enough you know’. Mr Smith further stated he had to redraw the plan with guidance from Mr Atkinson himself and then with the assistance of a shepherd employed by Mr Atkinson.

After the plan was redrawn to the satisfaction of Mr Atkinson, orders were given to a Walter Johnson, a local builder, for the wall to be built.

Several more witnesses for the plaintiff were called, all giving more or less the same evidence about the historical use of the Common by those who had the ‘Right of Common’.

Finally, Mr Brougham stood up and announced ‘That’s my case, my Lord’.

The judge, Mr Justice Bailey, commented that the building of such a wall, even though it was open at each end, was an obstruction to cattle grazing on common land on the north side of the wall.

Mr Williams, the defendant’s senior barrister, immediately responded by saying that in his and his client’s opinion there was no evidence to suggest that any cattle ever grazed on the north side.

Mr Justice Bailey responded by saying that where there was a Right of Common (i.e. access to graze animals on all of the common acreage), then that right must be upheld.

Mr Williams then addressed the jury: ‘The charge as presented before them and laid was that the plaintiff was entitled to a Right of Common over a place where a wall had been erected having a house and premises which are capable of maintaining in the winter the cattle for which he claimed the right in the summer and he had to submit to them that the plaintiff had not made out to their satisfaction either that he had the right in question or that that right extended over the Common to the wall in question’. He went to question the evidence given by several of the plaintiff’s witnesses and then followed that by saying ‘There was no evidence of any Right of Common where this wall was built. The wall was erected in the presence of Mr Clint, the head umpire between the Duke of Northumberland and Mr Atkinson. If then the Duke was satisfied, it was pretty evident that everything to the north of the wall belonged to Mr Atkinson.’ He then submitted to the court ‘That the building of the wall, with the sanction and under the inspection of the Agent for the Duke, showed that the Lorbottle estate extended to the wall.’ He ended his address by saying that there was no evidence of the plaintiff (Mr Bolam) having premises which gave him the Right of Common that he claimed and that the wall was the correct and proper boundary over which the plaintiff had no right to pass and that his client (Mr Atkinson) was entitled to a verdict in his favour.

Mr Justice Bailey then summed up the evidence saying that ‘The points for the consideration of the jury would be, had the plaintiff the right to which he claimed on that Common.’ He went to say to the jury that ‘The circumstance of the Duke being satisfied respecting the boundary line was no ground that the commoners should concede a right which they previously held.’ Carrying on, he said that for the Duke to be satisfied it would be on evidence and that evidence should be produced to the court. As no such evidence was produced it was for the jury to decide that if the plaintiff had Right of Common and if the answer was yes, then they have to decide if the wall was preventing access for the plaintiff’s cattle and that the fact that the wall was open at each end does not vary the case, if there was a Right of Common then the wall was a clear obstruction of that right.

The jury then retired and after a short consultation returned with the verdict – ‘We find for the plaintiff in respect of horse grass. Damages of one shilling and we think the wall should be taken down.’

The Tyne Mercury; Northumberland and Durham and Cumberland Gazette published on the 21st August 1827 reported on the case and ended with the following:

‘The important and interesting case of Bolam v. Atkinson having been decided in favour of the plaintiff, a numerous assemblage of people, inhabitants of Rothbury and the neighbourhood, proceeded on Friday afternoon with an elegantly decorated chair to meet Mr E Wilson and the plaintiff. The former, on account of his assiduous and preserving exertions in promoting the favourable issue of the case, was placed in the chair, and carried in triumph to the house of the plaintiff (the Star Inn), amidst the shouts and acclamations of hundreds.’

 

Postscript

William Bolam died in October 1829 and was buried in All Saints churchyard, Rothbury on the 18th October. His Will described him as an Innkeeper of the Star Inn, Rothbury.

 

This blog was produced by a project volunteer, we would like to thank them for their time and research. 

 

 

 

The Will of George Nesbitt

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Abstract of the will of George Nesbitt of Bailiffgate Street Alnwick in the County of Northumberland, Stonemason.

28th November 1815

By his will of his date George Nesbitt Directed first that all his just debts, Funeral Expenses and probate of his will should be paid and discharged by and out of his personal estate and effects except his household furniture and in case the same should not be sufficient for that purpose he did thereby charge and make chargeable all his messuages(sic) tenements or dwelling houses Hereditaments and premises to and with the payment thereof respectively.

And so charged and chargeable as aforesaid he did thereby give All those two Messuages(sic) tenements and dwelling houses with the Backbuildings yards Gardens Hereditaments and Appurtenances thereto Belonging situate standing lying and being on the south side of Bondgate Street in Alnwick aforesaid and then in the possession or occupation of Mrs Castles and Mrs James Thompson Spirit Merchant as Tenants thereof to and under him and also all that his other messuage(sic)Tenement or dwelling house with the Yard, Garden Hereditaments and Appurtenances therewith belonging situate standing lying and being in Baillifgate in Alnwick aforesaid and then in his own possession or occupation of Miss Richardson Henry Howey Esquire Mrs Garrett and others as tenants thereof to and under him.

And also all that his one undivided priority or full half part and in all that meesuageg(sic) Tenement or dwelling houses with the back buildings hereditaments and appurtenances herewith belonging situate standing lying and being in Cannongate Street in or near Alnwick aforesaid and then in the possession or occupation of Margaret Stage as Tenant thereof to and under him and the representatives of Adam Yelloly(sic) late of Chester Hill in the County of Northumberland aforesaid Gentleman deceased and also all other his hereditaments and real estate Whatsoever situate lying and being in the parish of Alnwick in the said County of Northumberland or elsewhere. Unto Edward Hamp of Alnwick aforesaid Merchant and John Nicholson of Greensfield in the parish of Alnwick aforesaid farmer. Upon the Trusts and two and for the uses intents and purposes thereinafter mentioned (that is to say). Upon Trust that they the said Edward Hamp and John Nicholson or the survivors of them or the heirs Executors or Administrators of such survivor or heir or his Assigns do and should from time to time when occasion should require grant or demise or let the said Hereditaments and premises or any part or parts thereof to such person or persons and for such rents and on such conditions and terms as the said Trustees or Trustee for the time being should seem expedient.

And for the purpose he did thereby give full power to the said Edward Hamp and John Nicholson and the survivors of them and the heirs Executors or Administrators of such survivor on their or his assigns to grant demise and let by Indenture Deed poll or otherwise the said hereditaments and premises or any part or parts thereof to any person or persons for any term or number of years not exceeding seven years in possession or to commence within one year after such granting demising or letting.

~And Upon Further Trust that they the said Trustees for the timed being do and should immediately after his decease enter upon take possession and receive all messuages(sic) Tenements or Dwellinghouses Hereditaments and premises and do and should pay the said Rents and profits thereof half yearly as the same should become due and payable or be received unto his dear wife Catherine Nesbitt or assigns or permit or allow his said wife or her assigns to receive and take the same for her own sole use and benefit during the minority or Day or Days of Marriage of his two daughters Mary and Cecilia Nesbitt which should first happen.

And Upon further Trust that they the said Trustees or Trustee for the time being do and should as and when his two said Daughters should be respectively arrive at Twenty one years of age or be both married as aforesaid pay unto his wife Catherine Nesbitt or her assigns for and during the Term of her natural life one annuity or clear yearly Rent charge or annual sum of Fifty pounds of lawful British out of the Rents or profits arise Or become due and payable from his said Hereditaments and pr4emises full and clear of and from all deductions and abatements whatsoever parliamentary parochial or others by two half yearly payments in the year (that is to say) Martimas(sic) and Whitsuntide the first half yearly payment of the said yearly Rent Charge or annual sum to be made on such of the days and times as should happen  next after is said two daughters Mary and Cecilia Nesbitt arriving at the age of twenty one years or to be married as aforesaid and do and should after payment of the said Yearly Rent Charge or Annual Sum of fifty Pounds so given to his said wife pay the remainder of the said Rents and profits unto his said daughter Mary and Cecilia Nesbitt equal between them share and share alike.

Direction that if the Yearly Rent Charge or annual sum of Fifty pounds or any part thereof should be in arrear and unpaid for the space of twenty one Days next after said Days or times whereupon the same was therefore made payable then and as often as the case should happen then it should be lawful for his said wife and her assigns into or upon the said messuages(sic) Tenements or Dwelling houses Hereditaments and premises or into or upon any parts or parts thereof in the name of the whole or otherwise to enter and there disclaim for the said yearly Rent Charge or annual sum of Fifty pounds or as much thereof as should be then in arrear and also as much thereof as should then be then in arrear and also such further sum or part thereof if any as should be or might become due during her possession under or by means of such entry and distress or distresses then and there found and taken to detain and keep until the said yearly Rent Charge or annual sum of Fifty Pounds.

After such distress or distresses should be so taken to appraise sell and dispose of the distress and distresses or otherwise to deal therewith according to Law in like manner in the case of the distresses for Rent received by lease or common demise for the purpose of paying the same.

Declaration that the said Rent Charge or Annual so given and bequeathed to his said wife was in lieu and satisfaction of all Dower and Thirds at Common Law she might so claim.

And from and immediately after the deceased   of his said wife Catherine Nesbitt.  He gave and devised all his said messuages(sic)  Tenements or dwelling Houses Hereditaments and premises unto his said two Daughters Mary and Cecilia Nesbitt and their Assigns for and during the term of of their antural lives and the life of the longer liver of them without impeachment of or for any manner of waste. And from and immediately after the determination of the Estate in the lifetime of his said two daughters Mary and Cecilia Nesbitt by profiture or otherwise.  To the use of Thomas Grey of Hope House near Alnwick aforesaid Farmer and Thomas Russell of Alnwick aforesaid Builder and their heirs during the lives and longer liver of his aforesaid Two Daughters Mary and Cecilia Nesbitt. Upon Trust to preserve the Contingent uses and Estates thereinafter limited from being Defeated and destroyed for that purpose to make entries and bring actions as occasion should require yet nevertheless to permit and suffer his two said Daughters  Mary and Cecilia Nesbitt and their assigns to receive and take the rents and profits thereof during their lives and the life of the longer liver  of them to and for their own use and benefit. And from and immediately after the deceases of his said two daughters Mary and Cecilia Nesbitt.  He gave and devised all his said Messuages(sic) Tenements f Dwelling houses Hereditaments and premises unto the child or children of his said two Daughters Mary and Cecilia Nesbitt lawfully to be begotten to be equally divided between and amongst them share and share alike as Tenants in Common and not as joint tenants.

Proviso that in case his two daughters Mary and Cecilia Nesbitt should happen to die without issue then in such case he gave and devised all his said Messuages(sic) Tenements or Dwellinghouses Hereditaments and premises unto his said wife Catherine Nesbitt he heirs and assigns forever. And gave and bequeathed unto his said wife Catherine Nesbitt for a during her natural life all his silver plate China Linen Woolen household and furniture of what nature and kind   soever and from and immediately after the decease of his said two Daughters Mary and Cecilia Nesbitt to be equally divided between them and shall share and share alike.

Declaration that all his said Household goods and furniture should be freed and donated of and from the payment of all just debts Funeral Expenses and probate of his will and he gave and bequeathed unto His said wife Catherine Nesbitt and his two Daughters Mary and Cecilia Nesbitt after payment of his just Book Debts and Money and Securities for money also all other the rest residue and remainder of my money personal Estate and effects of what nature or kind soever o be equally divided between and amongst them share and share alike.

Direction that the said Trustees or either of them or their or either of their Heirs Executors Administrators or Assigns should not be answerable or accountable damage which should or might happen or befal(sic) at his said real or Personal Estate of them or any part or separate parts thereof or any sum or sums of money they should respectively receive or disburse by virtue of the Trustees thereby in them reposed respectively unless the sum should happen to be their Wilful default nor one of them for the other of them but each of them for his or their own acts Deeds receipts Disbursements and conduct only and not otherwise.

And that it should and might be lawful for them and each of them by and out of the monies which should respectively receive and also to his and their Trustees and Co Trustee all costs charges and Expences which they or any of them should or might sustain expend or be put onto in and about the Execution of the Trusts thereby in them respectively reposed or in anywise relating thereto.

And he did thereby name and appoint the said Edward Stamp and John Nicholson Trustees and Executors of his Will and also Trustees and Guardians of the persons Fortunes and Estates of his said two daughters Mary and Cecilia Nesbitt by revoking all    other Will and Wills at any time therefore made by him and he declared present abstract writing to be and contain his last Will And testament.

And lastly he did thereby desire and recommend to his said wife Catherine Nesbitt to be kind and attentive unto John Nesbitt and Richardson Nesbitt late of Bitton in the County of Northumberland aforesaid deceased.

Signed and Sealed by the said

George Nesbitt in the presence

Of and attested by 33 witnesses.

The Story of John Walker

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An undated document found within the Dickson, Archer and Thorp collection tells the heart-wrenching story of John Walker and his young family. The Walkers were forcible ejected from their home in Warkworth due to their Scottish ancestry. The document details the terrible treatment of the Walker family by their Warkworth neighbours, and its author requests legal advice from the Dickson, Archer and Thorp firm regarding how to proceed with what has become a complex and sensitive issue involving three warring parishes.

The case probably occurred in the mid-1800s. John Walker, his wife and four children had been residing in a room in Warkworth for two years. John earned a living as a shoemaker, working for different masters. Due to a prolonged period of illness John was unable to work for a time, and his family received temporary poor relief from Warkworth’s overseers of the poor.

The Walkers were of Scottish origin and had been granted legal status to settle in England a few years prior. The people of Warkworth, reflecting nineteenth-century anti-Scottish sentiment, were “devious” and had been conspiring to push the Walkers out of their village. They saw an opportunity with John’s illness and forced his shoemaker master to stop giving him work once he recovered. They then bullied his landlord into seizing his rooms and articles of furniture.

Warworth Church © Mick Knapton. Creative Commons Attribution-Share Alike 3.0 Unported License.

Despite such cruel and unfair treatment the Walker family refused to leave the parish; probably because they had no place to go. The overseers then took legal action to achieve their aims. They escorted the family to be examined by two local Justices of the Peace over their legal right to settle in England. During the examination John explained that, whilst he had been born in Inverkeithing in the “shire of Peebles”, he had been granted legal status to stay and work in England. However, the Justices sided with the scheming overseers and signed a warrant to forcibly send the Walkers to the parish of Peebles. The family were to be accompanied to Scotland by Warkworth’s overseers.

Once in Scotland the family were delivered to the clerk of the Kirk Sessions for the parish of Inverkeithing. A meeting was called by Kirk members and they decided to refuse settlement, even though John had been born in the parish, as he had also resided in a place called Penicuik for many years. The Walkers were then forced to travel to Penicuik, Scotland under instructions to settle there instead. But the Penicuik overseers also refused entry and sent the family back to Warkworth.

The family were left with no other option than to return to Northumberland. They were “fatigued and exhausted with so long a journey in an open cart in severe winter weather, they remained a few days in a lodging house in Alnwick to refresh themselves.” When they finally arrived in Warkworth John demanded he be treated justly and granted entry. He also insisted on having his previous lodgings returned to him. The overseers complained loudly about the Walkers return and John went to the house of the resident magistrate to plead his case. But the magistrate was one of the Justices who had signed the original warrant and the Walkers were once again denied settlement in the parish.

The family were forced to make the eight mile trip back to Alnwick in awful winter weather. This final journey was almost fatal to their youngest child. John went to the Alnwick overseers of the poor and made a complaint against the conduct of the Warkworth parish. The Justices of Alnwick demanded the Warkworth overseers came and answered these astonishing claims of cruelty and mismanagement. Whilst the overseers obeyed the summons and traveled to Alnwick, they still refused to grant the family access to their old lodgings. The Warkworth overseers claimed they had obeyed the law by delivering “paupers” to their parish of origin, and maintained that they were not responsible for what had occurred after they had issued the warrant. They also told the Alnwick overseers to “do their worst,” but warned that they would stand by their original decision.

Exasperated, the Alnwick overseers requested legal advice from the Dickson, Archer and Thorp firm. The firm returned a final and damning opinion. They called the conduct of the Warkworth overseers “very disgraceful” but warned it would be difficult to punish them “as they deserve.” They suggested obtaining an indictment against the Warkworth overseers on grounds of conspiracy (based upon their initial scheming behaviour). Due to the absence of dates it is difficult to find any further record of John and his family, although it is hoped the Warkworth overseers received a suitable punishment.

 

We would like to thank the volunteer who kindly listed the documents relating to this case. 

 

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