Records Relating To the Barony of Kendale: Volume 3. Originally published by Titus Wilson and Son, Kendal, 1926.
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Does the custom of rating the Barony of Kendale and Bottom of Westmorland separately, apply to the reparation of Bridges ? No.
This was a vexed question that came before the Quarter Sessions on 15th April, 1822, when it was resolved that a committee of five be appointed from the magistrates acting in the East and West Wards, to meet a similar committee of magistrates acting in the Kendal and Lonsdale Wards, to examine documents relative to the custom of the Barony and Bottom rating the two divisions separately, to draw up a full statement of the case and to take legal opinion as to the legality of the custom. Kendal Order Book, 1817–24.
Statement of Case for Counsel's opinion.
The County of Westmorland, having one Commission of the Peace, is divided into four Wards, called East Ward, West Ward, Kendal Ward and Lonsdale Ward.
The two latter form a Division called the Barony of Kendal, and the two former another Division called the Bottom of Westmorland. There was originally a third Ward in the Bottom called Middle Ward, which in latter years has been incorporated with East and West Wards. In the course of last winter several bridges in "the Bottom" were washed down or injured by unusually violent floods, to rebuild and repair which a heavy expense will be incurred, and the most material object of enquiry upon the following case, is whether that expense ought to be defrayed by the whole County, or by that division of it called "the Bottom."
The Quarter Sessions are held at Appleby in "the Bottom" on Monday in the Sessions Week, and by adjournment at Kendal on the Friday, Kendal being the largest town in the Barony. At the Appleby Sessions a rate called a County Rate is ordered by the magistrates for all purposes to which a County Rate is liable in other counties where the whole county is rated, but this rate is levied in the two Wards of "the Bottom" only, and never extends or is intended to extend to any part of the Barony. A rate of the same kind, also called a County Rate, is ordered by the magistrates at the adjourned Sessions at Kendal, which is confined to the Barony. Each Division has its own House of Correction and Bridges, and passes its own Vagrants. The County Gaol, Court House and Assize expenses, including the prosecution of felons, etc., are the only charges they meet in common, and these charges are not met by one general rate laid upon the whole county, but by a fair proportion taken from the said two rates, as adjusted by the two high constables from the Wards in the Barony, and the two high constables from the Wards in "the Bottom," the four meeting annually to proportion the charges considered as common to the whole county; the two high constables in their respective Divisions having other meetings between themselves to adjust the expenses falling upon those Divisions separately.
The Records of the County have been carefully examined by a Committee of Magistrates, who cannot find the origin of the custom on which the practice of rating the Barony and "Bottom" separately is founded. It has been traced back as far as the year 1601, beyond which no records of Sessions proceedings can be found. Doctor Burn, author of "The Justice of the Peace," in his History of Westmorland, gives an account of the arrangement for holding the Quarter Sessions, made and agreed to by the magistrates of the county in 1676. Burn, Hist. West. & Cumb., vol. i, p. 319.
Paragraph No. 1, is taken from the Sessions orders in Kendal Sessions Book for 1676, and there is an entry exactly like it in the Appleby Sessions Book bearing the same date. These entries, besides the arrangement mentioned by Dr. Burn, contain a most important declaration on the part of the county magistrates, that before 1676 the Barony and "Bottom" had always been separately rated to Bridges, Houses of Correction, Gaol, and all other County Charges, and they assign the antiquity of the custom as the reason why it should continue. A Memo. Book of the late Dr. Burn contains a copy (No. 2) of an order made by the judges of Assize and three justices of the Peace in 1649, to levy 4s. in the pound on the whole county for the repair of 16 bridges, some of which are in "the Bottom" and some in the Barony. The original order, from which Dr. Burn took his copy, and in his time among the papers of the high constable of the East Ward, is lost, and no entry of the order can be found among the Assize records of 1649. From 1606 to 1660 the records of Sessions Proceedings are lost, but there are two Orders, in 1602 and 1605 (Nos. 3 and 4) which strongly corroborate the declaration of the magistrates above mentioned.
By an entry in the Appleby Sessions Book, 1601, which refers to a preceding Sessions held at Kendal, it appears that there were Kendal Sessions at any rate as early as 1601.
In 1601 the Barony and "Bottom" had each its separate treasurer.
"Treasurers for the Countie appointed ex novo.
The Sessions Books from 1660 to 1676 show very clearly that the "Bottom" and Barony were assessed separately for every public purpose.
Orders relating to Appleby Gaol, 1693 (No. 5) and 1673 (No. 6).
The Custom of rating the Barony and "Bottom" separately was departed from in 1704 (No. 7).
At the Kendal Midsummer Sessions in 1738, it is "Ordered that all the high constables in the County view the Gaol at Appleby, and contract for its repair."
That part of the arrangement for holding Sessions, made in 1676, which provided that the Midsummer Sessions should be held alternately at Appleby and Kendal without adjournment, was observed, with some instances of deviation, till 1809, when the magistrates agreed that those Sessions should always be holden at Appleby and then by adjournment at Kendal.
Orders relative to the County Gaol, in 1776 (No. 8), and Shire Halls in 1777 (No. 9); and maintenance of a prisoner, in 1776 (No. 10).
Among the entries in the Appleby Sessions Book there appears in 1673: "the Book of rates within East and West Wards in the Bottom of the County of Westmorland"; in 1679, "A catalogue of public Bridges in the Bottom of Westmorland," in which half only of Borrowbridge is assigned to "the Bottom," the other half being in the Barony; and in 1683, another list of "the several Bridges under writt allowed to be publique bridges in the Bottome of Westmorland to be repaired at the County Charge."
In 1661 the Master of the House of Correction at Appleby is appointed as "Master of the House of Correction for the County of Westmorland." And the two rates laid separately on "Bottom" and Barony are each called "County Rates."
Copies of entries in the Sessions Books, etc., more particularly referred to in the above Statement.
No. 1. Kendal Sessions, October, A.D. 1676, Caroli 2d 28th.
For the orderly holding of the Generall Quarter Sessions for the County of Westmorland it is proposed by the Judges of the Assizes in the year 1676. That once in every year vizt. at Midsummer there be a Generall Sessions to be holden for the whole County without adjournment, which is to be holden one yeare at Appleby upon Tuesday in the Sessions Weeke and the next yeare at Kendall upon Tuesday in the Sessions Weeke. That all other Generall Quarter Sessions be holden at Appleby for the parts of the Bottom upon Monday in the Sessions weeke, and at Kendal for the parts of the Barony by adjournment upon Friday in the same weeke. That the Clerk of the Peace is to mind the Justices at Appleby of making the adjournment to Kendall, and the Justices are to doe it accordingly; and the Clerk of the Peace is likewise at the Close of every Sessions to minde the Court to order a Writt to summons the next Sessions according to the method aforesaid, which is to be done accordingly.
As to all assessments and publique charges of Bridges, Houses of Correction, Gaole and other County Charges (they having hitherto always been distinct) are to remain soe for the time to come, soe that the Barrony is not to contribute upon any occasion to those charges arising in the Bottome, nor a contra, but the rates are to be made distinct.
We whose Names are hereunder subscribed doe hereby readily assent to the proposals within written
|For the Bottom.||Phil. Musgrave|
|For the Barony.||Danl. Fleming|
No. 2. From Doctor Burn's Memorandum Book, 6th Oct., 1755. At the Sessions at Appleby, on the question whether Scailes Bridge was a County Bridge (being then out of repair) an order was found in the Sessions Book about 1733 for the repair thereof by the County, and an order under the hand of the Clerk of Assize in 1649, in the custody of Leon: Thornburrow senr, of Ellergill, being part of the papers of Mr. Birbeck sometime of Coatflat, High Constable, in these words:
Ad Assĩas tent apud Apulbie in com Westmland decimo octavo die julij anno Dñi 1649.
Whereas the severall Bridges hereafter menc[i]oned are prsented to be in decay, and that they ought to be repaired by the whole County, It is ordered by the Hoble John Puleston, one of the Justices of the Common Pleas, Francis Thorpe, one of the Barons of the Exchequer, Edward Briggs, John Thwaites, and Gervase Benson, Esquires, fyve of the Justices of Peace within this County, That iiijs. p pound be assessed on the whole County towards repaire of the same Bridges, and forthwith levied, and that the same Bridges be repaired before the next Assizes upon paine of every Bridge not repaired in the same time, And the severall corporac[i]ons of Apulby and Kendal repaire the Bridges in their corporac[i]ons w[i]thin that tyme upon the like paine at their own charges.
The Bridges in decay.
Three things are observable from the abovesaid Order of Assize.
(a) The effect of the Civil Wars, after which we find sixteen bridges being at once out of repair.
(b) That the county was not then divided, but the whole charged together towards the repair of bridges.
(c) That this is the most ancient and authentive evidence that the bridges therein mentioned as such are County Bridges, which had been doubted concerning Scales Bridge (being not in the modern lists) and also Musgrave Bridge.
No. 3. Westmorland Appleby Sessions, April 12th, 1602, Elizabeth R. 44 It is ordered by the Justices in the Gen1 Sessions that within the several divisions of the Bottom of Westmorland, vizt. East Ward, Middle Ward and West Ward, shall be assessed five pence of every xxs. Rent towards the repairing of Warcopp, Bonegate, Smaredale, and Colbie bridges.
No. 4. Appleby Sessions, April, 1605, Jacobi 1st R. 3d. It is ordered by the Justices at this Sessions that there shall forthwith a Rate of xiid. after the pound rent of every Constablewick within the several Wards of Kendall and Lonsdale in the said County be paid and collected by every several Constable for the building of Hang Bridge and the repairing of Bethome Bridge, and that the Constables shall pay over their particular sums to the two Collectors hereunder named upon the severall precepts of the said Collectors, and that the said Collectors shall be commanded by virtue of this order to undertake the collection and shall pay over the same to the Surveyors hereunder likewise named, which Surveyors shall see the work finished, the workmen paid, and make their accompt upon demand to the said Justices of Peace or to some three of them according to an Indenture expressing the particulars of the said Collection.
|Surveyors.||James Buskell, gent.|
|Robert Buskell, gent.|
|Collectors.||Thomas Briggs in Kendall Ward.|
|William Hutton in Lonsdale Ward.|
No. 5. Kendall adj. Sessions, April, 1693. In pursuance of an order of the last General Sessions held at Appleby for this County of Westmorland the eighth day of Jany. inst. by their Majestys Justices of the Peace there for the assessing, collecting and Levying of nine pence in the Pound within the Bottom of Westmorland for the repairing and erecting the common Gaoll at Appleby for this County; and this Court being willing to comply therewith doe hereby order the like Some of ninepence in the pound be forthwith assessed collected and levied by the chief Constables of Kendall and Lonsdale Wards within the Barrony of Kendall for repairing and erecting the said common Gaoll.
No. 6. Kendal Sessions. April, 1673, Caroli 2nd. 24th year. Ordered that an Assessment of xiid. in the pound shall be laid through the Barrony for the repair of publick bridges, the common Gaol at Appulby, the payment of the master of the house of Correction, maimed Soldiers and prisoners in the King's Bench and Marshallsea, the 2 High Constables to be Treasurers.
No. 7. Westmorland. At a General Quarter Sessions of the Peace held at Appleby by adjournment 20th day of January, 1704. It appearinge by bill of particulars this day delivered into Court and examined and passed on view of the work done by his Majesty's Justices of the Peace of this County that the Sum of twenty-eight pounds six shillings is disbursed in the repairing of part of the County Gaol at Appleby. Ordered that the Sum of 3 pence per pound according to the Book of rates be assessed, collected and levied in the East Ward within this County of Westmorland as well on Tenantright as Demesne lands, to pay off and discharge the said Bills, And that the same be paid into the Hands of Mr. John Robinson, high constable of the said East Ward. And he to pay off the workmen and take their Receipts, and deliver or shew them to this Court when required. And that the order be made and sent to all the other wards in this County. The like order to the Chief Constable of the West Ward. The like order to the Chief Constable of Kendal Ward. The like order to the Chief Constable of Lonsdale Ward.
The rate basis being Barony £1358 1s. 10d. Bottom £1508 19s. 10d. a threepenny rate produced approximately £35 17s.
No. 8. 1776. Ordered that the High Constables of the several Wards of this County do forthwith issue proper Warrants to raise One Shilling in the pound according to the Book of rates to be applied in finishing and completing the County Gaol with all convenient Speed. By the Court.
Michaelmas Sessions, 1776, 7th October, held at Appleby. Ordered that the High Constable of the East Ward of this County do forthwith issue Warrants to raise two shillings in the pound within the said Ward according to the book of rates for repairing Bridges, conveying Vagrants, etc. By the Court.
Christmas Sessions, 1777, 13th January, held at Appleby. No order for a County rate. Ordered that the Treasurer of Kendal and Lonsdale Wards do pay unto Benjamin Ainsley, Gaoler, twenty-five pounds upon account for his delivering two Convicts, viz. James Whitehead and John Buchannan otherwise McDonald to the Overseer or Overseers appointed by a late Act of Parliament to receive Convicts upon the River Thames. By the Court.
Easter Sessions, 1777, 7th April, held at Appleby. Ordered that four shillings in the pound according to the book of rates be forthwith raised, collected and levied in the East Ward of this County as well upon Freehold and Tenantright as Demesne Lands within the said Ward for repairing public Bridges, conveying Vagrants, payment of the Master of the House of Correction at Appleby Salary and several other contingent charges by Law directed, and that the same be paid to the High Constable of the said Ward and that he be accountable for the disposition thereof. By the Court. The like Order for four shillings in the pound in the West Ward. By the Court.
No. 9. Midsummer Sessions, 1777, 15th July, held at Appleby. Ordered that two shillings in the pound according to the book of rates be forthwith raised, collected and levied in the East Ward of this County as well upon Freehold and Tenantright as Demesne Lands within the said Ward, for finishing and compleating the New Shire Halls of this County. By the Court.
The like Order for the West, Kendal and Lonsdale Wards.
No. 10. Midsummer Sessions, 1776, held at Kendal 16th July. Ordered that the Chief Constables of the different Wards of this County do pay to the Gaoler of this County four pence per day for the maintenance of George Sewell since his Committment to the Custody of the said Gaoler on the 23rd day of June last, and during his continuance in his custody (to wit) the Chief Constables of the East and West Wards one penny per day, and the Chief Constables of Kendal and Lonsdale Wards one penny per day.
Questions to Counsel.
On this Case your opinion is requested as to the following points:—
1. Does a Custom exist in the County of Westmorland, by which the Bottom and Barony are bound to maintain their Bridges separately ?
2. And if so, how will the matter stand with respect to antient bridges?
3. How with respect to Bridges which have been indicted under the Glusburn Beck case, and where no bodies corporate, individuals, etc. have been found liable to repair ?
4. How with respect to those built under 43 George III, c. 59, where the provisions of that Act have been complied with? The High Constables of East and West Wards act as Bridge Surveyors for "public Bridges" in the Bottom, as do those of Kendal and Lonsdale Wards for "public Bridges" in the Barony, but as so far no bridges have been repaired by the whole County, there have as yet been no Bridge Masters for the County generally.
5. How with respect to Bridges built since the passing of that Act by Trustees of Turnpike Roads, where they have neglected to comply with its provisions? Should the Bottom by itself rebuild and repair the damaged bridges, the Parishes in that Division would have to be rated higher by at least one third than those in the Barony.
6. Does 55 George 111, c. 51 (the provisions of which have been adopted in the County of Westmorland) affect the foregoing questions?
Mr. N. C. Tindal, Inner Temple, 16th Oct, 1822.
1 That there is not sufficient evidence of a Custom in co. Westmorland for the Bottom and Barony to repair their Bridges separately.
2. & 3. Supposing the Custom to exist, I think it would apply equally to Bridges which have existed beyond time of memory, and to those built within time of memory, but which have become public bridges within the decision of the Glusburne bridge case.
4. The same answer will apply to cases where bridges have been built within the County, where the provisions of the 43 George III, have been complied with, for if the custom binds the inhabitants of each district of the County to repair all the public bridges within it, the district becomes for this purpose, in the nature of a County; just as the separate Ridings in Yorkshire, which have each their County Rate applicable to the particular purposes of each Riding.
5. In cases where Trustees of Turnpike Roads have built bridges since the 43 George III, without complying with its requisitions, if there is any provision in the Turnpike Act enabling the Trustees to build such bridge, and any fund out of which it is to be repaired, the Trustees may be made liable; but if no such fund exists, I do not see how the inhabitants either of the County or the separate district can be made liable.
6. I do not think the 55 George III, will have any effect upon this question.
Mr. I. Littledale, Gray's Inn, Dec. 14th, 1822.
1. I think there is no Custom in co. Westmorland, for the Bottom and Barony to repair their bridges separately. As I think the Custom cannot be supported, it is unnecessary to answer the other queries which are put upon the supposition that the Custom would be proved.
Mr. Thos. Starkie, Inner Temple, Dec., 5th, 1822.
|1. I am of opinion that the Custom in question cannot be supported.|
|2. Repairable by the County at large.|
|3. See (opinion) above.|
|4. Not repairable by the County.|
|5. Not repairable by the County.|
|6. I am of opinion that they do not.|
Apparently it was as a result of the above opinions that, in the following year, an Act (3 George IV) was obtained for raising money on the credit of the county rates for the purpose of rebuilding and repairing certain bridges in Westmorland. Then followed an Order of Quarter Sessions, made on 15 April, 1825, that the Clerk of the Peace do obtain from the Bridge Masters a list of all the bridges together with the names of the different Townships in which the same are situate, and the length of the road over at the ends of each bridge liable to be repaired by the County or Ward. (K. Minute Book, 1825–38).
|Raise||Grasmere||100 yards at each end. (fn. 1)|
|Smithy||"||100 "" (fn. 2)|
|White||"||100 " "|
|Church||"||100 " "|
|Stock||"||100 at west, 50 at east end. (fn. 3)|
|Combeck||Langdale||100 yards at each end.|
|Colwith||"||100 from centre of arch at Westmorland end. (fn. 4)|
|Brathay||Longhrigg||100" " (fn. 5)|
|Skelwith||"||100 " " (fn. 6)|
|Rydal||Rydal||100 yards at each end.|
|Pelter||"||100" " (fn. 7)|
|Stock||Ambleside||100 " "|
|Scandal||"||100 " "|
|Rothay||"||100 " "|
|Holbeck||Troutbeck||100 " " (fn. 8)|
|Troutbeck Church||"||100 " "|
|Millbeck Stock||Undermillbeck||100 " "|
|Ings||Hugill||100 " "|
|Scroggs||Over Staveley||100 " "|
|Barley||"||100 west end, 27 east end.|
|Gawen||"||100 yards at each end.|
|Bowland||Crosthwaite||100 Westmorland end. (fn. 9)|
|Winster||"||64 " " (fn. 10)|
|Blea-cragg||Witherslack||20 " " (fn. 11)|
|Poolhouse||Meathop||13 " "|
|Garnett||Strickland Roger||5 at S. Roger end, 100 at Selside end.|
|Crookdale||Fawcett Forest||100 yards at each end.|
|High Borrow||"||100" "|
|Huck's||"||Uncertain. (fn. 12)|
|High Bannisdale||"||100 yards at each end.|
|Low Bannisdale||"||100" "|
|Mint||Skelsmergh||100 " "|
|Laverock||"||100 " "|
|Patton||Patton||100 " "|
|Low Borrow||Grayrigg||100 on the Kendal Ward side.|
|Salterwath||"||100 " "|
|Docker||Docker||100 yards at each end.|
|Sprint||S. Roger||100 " "|
|Burneside||"||100 " "|
|Bowston||"||100 S. Roger, 50 S. Ketel end.|
|St. Sunday||Old and New Hutton||Uncertain.|
|Hawes||Natland||38 Natland, 57 Helsington. (fn. 13)|
|Peasey||Preston Patrick||100 yards at each end.|
|Warth-sudden||"||100 " "|
|Farleton||"||100 " " (fn. 14)|
|Mansergh Beck||"||Uncertain. (fn. 15)|
|Force||Sedgwick||100 yards at each end.|
|Hang||Beetham||60 yards from the spring of the arch at Beetham end.|
|85 yards from the spring of the arch at Whasset end.|
|Beetham||Beetham||100 from the spring of the arch at each end.|
|Milnthorpe||Milnthorpe||30 yards at E., 60 at W. end.|
|Levens||Levens||74 Milnthorpe, 50 Kendal end. (fn. 16)|
|Sampool||Levens||100 yards at each end.|
|Stramongate||Kendal||One half the expense of repairing the road over the bridge. (fn. 17)|
|Blindbeck||Kendal||Uncertain. (fn. 18)|
Note there is no mention of Nether Bridge.
A total of 59 bridges in the Kendal Ward and 17 in the Lonsdale Ward.
1827. 12 January. Edward Tomlinson, surveyor of bridges, certified that the following had been erected in a substantial and commodious manner; viz:—Kearstwick New Bridge, Blea-beck in Mansergh, Middleshaw in Old Hutton, Strickley in New Hutton and the Bee Hive in Stainton. He also certified that Hutton Bridge which was erected by the Trustees of the Turnpike Road was now in good and sufficient repair. K. Minute Book, 1825–38.
1836. 1 July. It is reported that there are now 66 county bridges in the Kendal Ward and 19 in the Lonsdale Ward (ib).
1866. For a long period the duties of Bridge Master developed upon the High Constable. On the resignation of Mr. John Braithwaite and Mr. Edward Tomlinson in 1836 the offices were separated when a Bridge Master for the whole of the county was elected in the person of Mr. George Robinson. Upon his resignation in 1866 there were three selected candidates for the post, viz. Mr. Joseph Bintley of Kendal, Mr. John Fleming of Ambleside and Mr. C. J. Ferguson of Carlisle. Mr. Bintley was elected by a considerable majority at the Sessions held on 19th October, 1866, at a salary of £150. (K. Minute Book, 1859–75). Mr. Robinson was appointed Supernumerary Bridge Master at a salary of £80 in consideration of his long and faithful service to the County. (ib.).