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ARGUED AND ADJUDGED
Court of King's Bench,
DURING THE TIME
LORD MANSFIELD PRESIDED IN THAT COURT,
Michaelmas Term, 30 Geo. II. 1756, to Easter Term,
12 Geo. III. 1772.
IN FIVE VOLUMES.
BY SIR JAMES BURROW, Knight,
OF THE INNER TEMPLE.
THE THIRD EDITION,
WITH THE ADDITION OF CRITICAL NOTES AND OBSERVATIONS, AND
REFERENCES TO OTHER REPORTS AND AUTHORITIES.
From Michaelmas Term, Geo. III. 1766, 10
Hilary Term, 10 Geo. III. 1770, inclusive.
(Sir John EARDLEY WILMot having on the 21st
of August last) been appointed Lord Chief Th Justice of the Court of Common Pleas, in the Nov. room of Lord CAMDEN, to whom the Great Seal was delivered upon the Earl of Northington's resigning it; Mr. Serjeant Hewitt was yesterday appointed a Judge of this Court; and took his place upon the Bench, this morning.)
Rex vers. Inhabitants of CASTLETON,
(This case is already reported at large, in the Quarto Edi.
tion of my Settlement-Cases, No. 183. page 569 ; and abridged, in the Table to it.)
Friday 7 Nov
1766. CHAUSE was shewn why an information should not go
against the defendant, a Berkshire Justice of Peace Right of Glean residing at Wantage, for á misdemeanor in oppressively ing or leasing sending to gaol some poor inhabitants of the parish of must be exer
cised under Childery, for FELONY in gleaning a field of John Sim. o
sme proper circummons a farmer of that parish; (which they insisted they stances and had a right, by law and by the custom and usage of that restrictions. parish, to do ;) and for refusing to discharge them out of custody, after they had found bail.
The field of barley was partly cut; but not carried in, a third part of it being on the ground; nor indeed completely raked and cocked, when these gleaners took it away. Oath was made by the Farmer, before the [ 1926 ]
as had their corny who a whichided to bem sivorno uh
and then he
seven of the
1766. Justice, " that these people had stolen his barley in ttre
straw :" and he now swore " that he had forbidden Rex v. 66 them; and yet they took it by handfuls; and that he Price. “ had suffered the loss of about twenty bushels of barley,
6 by their carrying it off, two days together.”
Mr. Morton, who shewed cause on behalf of the Justice, denied the right which these people claimed ; and said that the Justice was obliged to proceed against them
as he had done; a felony liaving been sworn upon them, * The Justice and they having no bail then ready *: for their bail heard the
plaint and refused to bail them till after the Justice should have first asked them if committed them. He did accordingly commit them; they had any not to the County-Gaol, but to the House of Correction : bail : but one Winterbourne anal
and then he alone did bail them, taking only one single insisted that bail; and thereupon ordered them to be discharged ; they should be though he did not immediately sign a warrant of disa first committed;
4; cltarge. He denied all malice, and any design of would be bail oppression. for them. Sir Fletcher Norton, contra, insisted on the right of the There were
n. poor, to glean, after the corn is carried off the land : and men and wo.' he said that they would be justified, in an action of
trespass, for entering such land in order to glean, under ed by a neigh
. the common-law right of so doing. bonring At The fact could not, he said, be a felony : at the utmost, . torney. it could be buit a trespass. But it really was neither :
for, by law, they had a strict right to do it. However, if it were a felony, the Justice had no right to commit
them to the House of Correction ; nor had he alone any + V. 1 & 2
power to bail themt. It is plain that he knew it was not Ph. & Mary, a felony. C. 13. || 3.
Lord MANSFIELD-STEALING, under the colour of leasing or gleaning, is not to be justified.
Now tlie charge against these people is stealing the barley, before the crop was carried off; and when part of it was not cut, and a third part left on the ground, not yet carried in. There does not appear to be any sort of contest between the Farmer and the poor about leasing: his only objection, and his forbidding, is confined to the stealing it.
No malice or oppression at all appears in the conduct of this Justice: thc malice seems to lie on the other side. The malice seems to be in the Attorney, who carries on
the prosecution against him. ( 1927 )
Therefore the Rule ought to be discharged with costs." Mr. Justice Yates said, he could not see that the Justice had acted with any criminality or bad intention ; but rather with lenity: and in such a case, the Magis
trate ought to be protected, not punished. [1 H.Bl. 65.) As to the right of leasing it will be time enough to
determine that point, when it comes directly in question.
But here, the Farmer had not abandoned his corn, or 1766. carried it off : and he has sworn that they stole it.
Mr. Justice Aston--He has acted with moderation Rex Y. and lenity. The Rule ought to be discharged with PRICE. costs.
The right of leasing is no part of the present question. It may be exercised by law or custom, in a certain degree; but that question may depend upon circumstances. This is no question about the right of leasing or gleaning: it is a charge of stealing the corn; and oath is made of their having stolen it,
Mr. Justice Hewitt-The right of leasing does appear (1 H. Bl. 57.] in our books: but it must be under proper circumstances and restrictions. However, it is no part of the question here : for this is a charge of direct stealing.
The Justice appears to have acted in this case without any design of oppression, or malice, or any bad intention : on the contrary, he has behayed with lenity and tenderness. It would be very wrong to punish a Justice of Peace by the extraordinary method of an information, when he has acted fairly, honestly, and impartially, Therefore this Rule ought to be discharged with costs.
Per Cur'. unanimously-
(See Sayer's law
of Costs,96.97.] M R. Dunning moved, on behalf of the plaintiff, an Administrator 11 Administrator, for Leave to discontinue, without may disconpayment of costs.
tinue without This was an action upon a bond, against an heir. On costs, the plaintiff's not trying it according to notice, the de- L1 fendant moved for judgment, as in case of a non-suit : whereupon, the plaintiff undertook to try it peremptorily. (a) When it came down to trial, he first discovered “ that the estate had been conveyed;" and was Vin. Execu“ then satisfied " that there was a deed of conveyance, tors (pa. 2.) which would be produced at the trial.” Whereupon
2 H. Bl. 277.6
"Durn. 655. 3 he declined to go to trial;" and now desired to dis- Bosan. 117. continue.
Mr. Thurlow, on behalf of the defendant, opposed his
(a) It is not stated whether the Court put the terms of payment of costs on the plaintiff as usual, where be is not executor or administrator; but though it is not so stated, it must be presumed that it was on the terms of payment of costs, because Lord MANSFIELD afterwards ways « Here is no double vexation."