A charming court report about whether a farm track should be repaired by
the Highway Board. A court case with great character, including a juror
who overslept and a comic yokel
Foxearth & District Local History Society
Suffolk and Essex Free Press
April 8th 1869
(Before Chief Justice Bovill)
Norton v the inhabitants of the Parish of Cavendish
This action arose originally from the plaintiff's requiring the Wickhambrook Highway Board to repair a certain road leading to his property in Cavendish. The Highway Board refusing as the parish denied liabilty,the plaintiff Mr Albion Julious Ceasar Norton laid an indictment at the Quarter Sessions for the county at Bury St Edmunds from whence it was transferred to these Assizes.
The case excited great interest in the district. Mr Keane Q.C.,Mr H.Mills and Mr Mayd instructed by Mr Fisher,solicitor from Clare,appeared for the plaintiff and Mr Blofeld for the defence.
Mr Keane said this was an indictment preferred against the Highway Board which by a recent act of Parliament was liable to repair the highways of the parish of Cavendish instead of the parishioners.
The place referred to was a certain highway in Cavendish from a place called Mott's corner to Finstead End which at present was in a state of disrepair. He would show the road was used by the public and was repaired such as it was by the parish.
An act passed in 1835,the liabilty of the parish to repair the recently made,did not come into force until till the road was first put into proper repair. There was a curious feature about this road,there were several gates on it to prevent cattle straying but they were always open and the public had a perfect right to go through.
The first witness was Mr Geo.Coote who proved the accuracy of the plan
produced. He said the greater part of the drift was slush. It was a mere
trackway but in many places were traces of metalling,he did not know who
put the stones there,there were about ten chains in that condition. The
soil was loam.
The piece of road referred to was a pretty good road.
Cross-examined by Mr Bulwer;
" the greater part of the road passes Easty Wood and Waterfield Wood which was on the right hand side of the road but School-Wood which faced it had been stubbed up. The parish boundary was at Finsted End near a little brook which was crossed by a bridge. After passing that,it was an open space".
'is it not full of hills and holes?'
'it is not a good road,you might ride across at a trot in a light
gig,after this you get into a drift called the Chaseway.
Further down the road there is a gateway with two posts standing but I did not see a gate. There was one a little way down near Mr Garrett's wood.'
' is there not a gate near Easty Wood?'
' There is a gate-post simply. The prosecutor occupies Moor's farm; Mr Bulwer;if it were put in repair would it be a convenience to the prosecutor? Wit- yes and to the whole district. The trees cut down in the woods are dragged along this road.'
'have you made an estimate of the expense of repairing this road?'
'I have not but probably a road of 15ft wide would cost about
£500,I cant say whether it might cost £1000 but giving a
proximate opinion it would cost perhaps £700 to £800 to put
it in good repair.
From Finstead-End road to Finstead there is a good metal road. From Cavendish to Bury it is rather more than a mile and half nearer to go by this road than by the usual road through Glemsford. '
Mr Albion Norton,examined by Mr Mills,said he occupies lands on both sides from Mott's End to Mr Garrett's wood in Cavendish and paid rates for it. His occupation also continued a little way on the left hand side of the road..
' You may say that he occupies all the property to Finstead End with the exception of two woods,Mr Garrett's and Easty woods. He is substantially the largest occupier for he has land to the right hand side as well.'
Mr Albion Norton
' I have known the road for 28 years and have seen it used by many persons,cattle are also driven through. I have seen Mr Chinery,Mr Spencer,Mr Brand and Mr Mortlock use the road,it has always been a public road,I never knew the gates to be locked. Cross-examined by Mr Bulwer;'
Mr Albion Norton;
'I think there are six gates in all. I have not occupied Moors farm all the time,Mr Coldham had it until about six years ago. I own Moors farm. I asked Mr Viall to examine the road with me and offered him part of the rate he would have to pay for making it,I think I mentioned £20,I learnt Mr Viall was opposed to it afterwards but he aquiesced at the time. Timber from the woods are carted down this road,I have seen farmers tumbrils and tradesmen's carts go along the road.'By his Lordship
'Ambrose the butcher supplies me but he would not come along the soft road to get to my house.'Hugh Coldham,a pauper in Sudbury Union aged 75 said
' I formerly lived in Cavendish and have often been along the road,I went over the road 50 years ago and never found the gates locked. I have worked on the road filling the ruts,I worked for my uncle Jeffery who used to look after the roads in the parish.'
' Where were you between 1820 and 1830?'
' I cannot tell you,for I aint no "scholard" and never kept no account. There were other soft roads in Cavendish but they have been made hard,I helped to cart faggots out of Easty wood.'
'And it was very nice to stub the roads up wasn't it.'
'We did not do it unless we had orders,the roads did not want much cutting up for the carts and it was a "comical" job for the horses to get along.'
'Mr Norton is a very nice man isn"t he?'
'He do very well for me,(laughter).
He had a talk with you didn't he,did he freshen your memory up,'
'No not he.'
'Did he give you money?'
'I shant tell you,you want to know too much,(laughter).
'Come,tell me how much you received,you need not mind telling me.'
'I shant tell you any more,I aint going to be sifted.(laughter).
Thomas Everett,another old man living in Cavendish deposed that he had worked on the road many years ago. He was set on by the surveyor.
'There were three men working on the road with me. He had seen tumbrils and carts on the road. he never knew a lock on the gates.'
'Have you not had dinner at Mr Norton's?'
'No I have not.'
John Bean labourer of Glemsford said he had known the road since 1820 and used to work at Moors farm. He corroborated the other witnesses as to the users of the road and said the gates were never locked. He had seen cattle go along the road to Bury market.
Cross-examined by Mr Bulwer:
'I never knew the gates to be locked nor have I seen old Pat Wells or his wife come out with a key to unlock the gate or a chain on the gate. I used to get 1©d for a days work,I never worked a whole week on it.'
David Cook aged 80 said that in 1814 he used to work at Boxted for Mr Pain and used to carry corn from his Master's to Mr Offord's malting in Cavendish.
Thomas Brand aged 90 said that he formerly hired a farm at Finstead End and used this road to go to his father's farm at Pentlow which was through Cavendish. He had seen gates on the road but had never known anyone prevented from using it.
'I got set fast there with a timber-jim and had to stub it out,I turned out some stones.'
Lord Ambrose,aged 60,said he had known the road all his life. He used to assist his mother who was a butcher and often drove stock through,he had never been stopped by anyone nor did he find the gates locked,
I should not have allowed anyone to stop me as I knew it was a highway.
Richard Ambrose,butcher of Cavendish gave corrobative evidence and the case for prosecution closed.
The court sat on Saturday and when the Clerk of Arraigns called the names of the jurymen it was found that juror Mr Thomas Neale from Bungay was absent,the court waited for 15 minutes but no juryman. His Lordship asked if anyone knew where Mr Neale was lodging,he was told at the Crown and Anchor. A messenger was spent and he speedily returned with the news that he was still in bed,but he arrived soon afterwards and begged his Lordship's forgiveness,his Lordship said he would forgive as he had had a long sitting yesterday.
Edward Orbell said
'I am a dealer living in Sudbury. I used to live in Pentlow. When I lived there and wanted to go to Tinsted End which I did about 14 years ago when I went there to see some sheep. I did not know the way but Chinery did. I went up this lane. I know the gateway at Moors Farm. When we got there it was locked. Chinery got out of the cart and went to the farm house and saw the woman and she opened the gate,I dont know who the woman was. Chinery gave her some halfpence.'
' that is 14 years ago. I never went any more through the lane with a cart;we did not wait half a minute when Chinery went for the key.I first spoke about this business about three weeks ago. I volunteered to give evidence to Mr Viall at the Bear public house in Clare. Chinery and I were in business at the time. Walter Chinery said I live at Belchamp St Pauls and am a farmer. Some years ago I went into partnership with Orbell and went about the country buying sheep. I have been to Tinsted End. I have gone along this drift to Easty wood. It was very bad going. I remember once finding the gate locked. A woman named Mills opened the gate for us,I gave her some halfpence. I never had occasion to go through at any other time. I have seen it chained at other times. On the day I went there it was padlocked.'
' I have known that gate done up with a chain many times. I have not been there this last 5 years but I was there 15 years ago and the gate was locked then. I have been there several times on foot. I have lived in the neighbourhood for 30 years. Mr Viall spoke to me on the subject of this prosecution. He asked me whether I knew the road,I said yes. I saw Mr Viall about a fortnight ago.'
'I am a farmer and live in Cavendish. About 5 years ago I sold Moore's farm. My father died in 1833. He occupied the farm and I occupied it after him. I sold it to Norton,the plaintiff. I remember about 30 years ago I had a bailiff named Mills living in the off hand farm. He had a wife. I kept cows in the home pasture. Sometimes we kept the gates across the lane locked. They went to the house for keys. I have seen that several times when I was there.'
'I remember Richard Ambrose the butcher and have seen him at the gate. He sent after the key. I have never seen the parish workmen repair the road. I have carted stones there myself. I never went to the parish to have it repaired. It was never a hard road. I have grown hay on home pasture and mowed right across the roadway. '
By the court:-
'There was no made road,there was a wheel track but not enough to destroy the grass. The gate I have spoken of went right across the driftway and was intended to stop people going across the meadow. '
By the court:-
' My garden was on the right hand side as you went to the gates. The strips of ground going towards Tinsted End and passed Moore's pasture was a meadow. I am a parishioner of Cavendish and have attended vestry meetings. Mr Norton talked a good deal at these meetings about this matter. '
' It is always the case,they disagree about something at these vestry meetings and not being able to settle them they come here to get the jury to settle them. '
By the court:-
'-Mrs Norton never applied to me to know if the gateway was closed.'
Timothy Raymond said:-
'I live at Belchamp and am 73 years of age. 44 years ago I was living at Wales End farm,I know all the roads in this part of the country. I was surveyor of roads in the parish of Cavendish for 17 years. The parish made the road hard from Cavendish to Wales End. 'By his Lordship
'This is not the road the dispute is about,it is one out of which it leads:. I know the drift very well. It is a dirty old lane. During the time I was surveyor the parish never made the road up. I was in the habit of attending the meetings when the surveyors accounts were gone into. It was a hard road up to Wales End. The parish made a good road up to up to my house. 'By Mr Keane
'Were there any books at all?'
' yes we entered material into them. I do not know where the books are.'By the court
'I farmed 250 acres of land. There is about 3000 acres in Cavendish.'
That was the evidence for the defence. Mr Bulwer addressed the jury for the defence.
'The fact of the matter was that many years ago it was the practice with large farmers to have a good road made through their farms by the parish and in subsequent years call upon the parish for repairs. In 1868,the legislature passed an act to prevent that sort of thing,it is called the Highway Act. Provided that any person wished to dedicate to the parish all he had to do was put it in proper repair and ask the parish to accept it. If Mr Norton wished the parish to repair the road he had nothing to do but repair the road and ask the parish to accept it. The parishioners would then meet in the vestry and decide whether to take the road or not. He did not do that but tried to make out that the previous year 1836 this road was dedicated to the public by the former owner and he called a lot of witnesses to say that they had frequently used the road. That he contended did not make the road a highway. The gentlemen of the jury would know very well that there was scarcely a bye road or drift way in the country but what the same evidence would be given. He contended that there was no evidence to show that the road belonged to the parish and he left it to the jury to say that he had conclusively asserted the position he took.
Mr Keane for the prosecution said he would be compelled to differ with Mr Bulwer respecting his opinion of the Highway Act. .
His Lordship summing up said it was a very serious matter inasmuch as the repair of the road would cost something like £700 to £800. The parish said this was not a parish road but simply a road leading to a few farms. Some time ago it was common for large farmers to get together and appoint road surveyors and then they looked remarkably well after their own roads. In all his experience he had never heard of a road of so short a distance with no less than six gates across it. In his opinion it was a very strange highway with gates upon it. These gates were locked and the key kept at Coldham's off farm,people were apparently allowed to use it as they did no harm. The jury would have to consider whether the road was a highway before August 1835. .
The jury considered their verdict and after a short consultation found a verdict for the defendants on all the issues.