A Legal Note

A Legal Note

A legal note

(Many thanks to one of our transcribers, Christopher Walton, who is a retired District Judge, for writing this. It is a work in progress; he will update it as we get further through the transcription process)

The agreement Errington signed with the Magistrates was just about the most cast-iron contract you could make. It was under seal and thereby a Deed. That meant it could be impugned by only one defence: non est factum or “not me”. Obviously that did not arise. Misrepresentation, Mistake, absence of consideration, general unreasonableness, none of those were grounds for attacking it. Possibly fraud but it would require further research to see whether at this time it was available. In any event it could not be said to arise either.

To add to the problem the agreement and the Penalty was incorporated into an Act of Parliament, the ultimate law. At common law Errington was stuck with it when it all went wrong. In due course, as they were entitled, the Magistrates obtained a judgment based on it. There could be no other result.

The question arises why an apparently intelligent man of business could make such an agreement. Smeaton at one stage himself confesses to puzzlement and with the hindsight which characterises a lot of what he has to say, says that if he had been told what was in it he would have counselled Errington not to sign. Errington was obliged under the agreement to maintain the Bridge for 7 years after completion, rebuild it in case of disaster and received somewhat over half of the Penalty he was under if he did neither.

There must have been considerable advantages for him to do that and the answer must lie in the advantage to his estate which was given a very helpful means of access over the River the greater part of the building cost being at the County’s expense.

So he entered a potentially onerous agreement with his eyes open, accepting a huge liability in the event the Bridge failed which, on the basis of the advice he received from Smeaton he no doubt thought highly unlikely.

After the collapse he seems to have decided fairly early on he would not rebuild. By then Smeaton was saying if he had realised how fierce the current would be in the event of a flood he would never have advised it. This rings somewhat hollow, when Smeaton knew about previous Bridge failures not so far away and earlier floods. He also knew that Wooler considered the project required very special measures to achieve in safety.

After the decision not to rebuild Errington’s first approach was to offer the Magistrates an agreement releasing him from the agreement in return for compensation falling short of the penalty sum. They responded (and it seems an easy excuse to make) that they could do nothing since it was part of the Act of Parliament permitting the Bridge to be built.

So Errington goes off to parliamentary counsel, a Petition is drafted the thrust of which is that the agreement be set aside and a hearing before a sub committee of Parliament arranged. Witnesses are called and their evidence recorded. Basically the proposition being advanced depends upon the evidence of Smeaton that the Bridge was doomed from the start, given the level of violence of which the River was capable. It would be fair therefore to release Errington from conditions which no-one at the time realised were impossible to fulfil.

The committee appears to have pushed the matter into the long grass without coming to a conclusion. Perhaps it was realised there was a considerable body of opinion among the Magistrates that Errington should pay the price he had covenanted to pay in the Deed in return for receiving the County’s money.

Errington’s next throw is to take the matter to the Grand Jury at the Assize. Presumably this body contained at least some of the County’s great and good and he hoped that an expression of support for his position from them would influence the Justices. Not surprisingly there are hints that some of the Magistrates resented this supra-legal process and Errington writes a long letter to Aynsley, the Chairman, saying in effect that there was no intention to twist the Bench’s collective arms, he simply thought they would benefit from hearing how people felt! In the letter he repeats the offer to negotiate and at a hearing which he himself does not attend he is given the opportunity to get evidence from Smeaton about the actual cost of rebuilding the Bridge (although Smeaton’s primary position is that it is a waste of time).

There is then the hearing at Morpeth when Ralph Heron is called through to a back room (a deliberate shift away from a public hearing?) to make his pitch on the basis of Smeaton’s estimate. He is told they will let him know and the following evening receives a letter from the Justices clerk giving the unwelcome news that the Bench reject a cost of rebuilding measure and want the full penalty sum. In the absence of that they will commence proceedings.

So far as the transcription papers go matters proceed relatively swiftly into the hands of the lawyers. At common law, the Magistrates’ case is unanswerable and they duly get judgment. Then they start on the enforcement process which is where fi-fa and elegit (see above) come in. But all this is in the common law courts and it is crucial to an understanding of how matters proceed that at this time there was another set of courts administering a different set of rules: the Chancery courts applied the rules of Equity.

Every law student is told that Equity arose from the position of the Lord Chancellor as keeper of the King’s Conscience. Often an ecclesiastic (such as Wolsey), the Lord Chancellors developed rules which were meant to protect against injustice, particularly injustice arising from some of the more rigid rules of the Common Law. The present facts are an example in a sense. Errington’s case was that because of the rigidity of the rules about Deeds he could not rely on what he perceived as the injustice of being under a Penalty to achieve something which on later understanding could not be achieved. He relied on this as inequitable.

He also relied upon the fact that, as he claimed, the Magistrates led him up the garden path by adjourning so he could get information about the cost of rebuilding from Smeaton. By this time, having made their judgment the Magistrates are in no mood for compromise, but they get a shock when they appear before the Chancellor because (without apparently reading into the case!) he expresses the opinion that they are being unreasonable in not treating with Mr Errington; and he issues an injunction to prevent enforcement of the judgment at common law while the Chancery case is ongoing. Interestingly, the Chancellor heard the case (see document 86) despite having given an Opinion as counsel at an earlier stage. Today, the procedure would be that he would ‘recuse’ himself (that is, withdraw from the hearing), if he had been involved earlier. On the other hand, during the same hearing it is clear that the law drew a distinction between a clause in a contract which is a penalty (unenforceable) and a ‘genuine pre estimate of damage'(enforceable), just as it does today.

So the proceedings drag on through the quaintly named pleadings. Interrogatories, for example, were a means of requiring the other side (through an appropriate witness) to answer some questions before trial which must be answered on oath. The answers can then be used at trial to gain some forensic advantage. Depositions were statements of witnesses under oath which set out the witness’s evidence either on the basis of his own direct observation or to the best of his knowledge and belief. They would be taken at some speed –the speed of the witness’s speech-which accounts for the difficult handwriting and the numerous abbreviations. The deposition was taken down by an examiner in Chancery, essentially a clerk with the necessary skills, who it seems would travel to some place convenient to the witness, for the purpose.

In this part of the papers the title of the proceedings reflects the fact that Errington is the Claimant and Aynsley, Tweddell and Wastell are Defendants. I suspect they were identified as the correct persons to be made Defendants because they were Plaintiffs in the common law action, the judgment would be in their name, and they were the ones who had to be stopped from enforcing it.

By the spring of 1788, the case is ready to be tried at the Cumberland Assizes before a Special Jury. Such Juries were formed by each side striking out names from a list of 48, leaving 24 men to hear the case.

(The present Note ends at this stage. Eventually we know that the parties come to terms. Errington pays somewhat more than he was offering but less than the Penalty. He did well in that sense because for myself I believe that even in Equity he would struggle to make a case of real injustice. The fact that the Magistrates gave him the opportunity to get an estimate from Smeaton by no means bound them to go down that route. The other complaints about the agreement are essentially hindsight; and he was prepared, for a considerable advantage, to take the risk of damage from a flood. Floods at this time, Floods which damaged bridges, were not unknown and the possibility must have been present in Errington’s mind when he entered into the agreement which he did). If you take a chance is it so very inequitable that you suffer the result when the chance materialises?

Chris Walton

28 September 2017