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ARGUED AND ADJUDGED
Court of lttitg'0 Benck
DURING THE TIME
LORD MANSFIELD PRESIDED IN THAT COURT,
Michaelmas Term, 30 Geo. II. 1756, to Easter Term,
IN FIVE VOLUMES.
By SI R JAMES BURROW, Knight,
LATE MASTER OF THE CROWN-OFFICE, AND ONE OF
THE BENCHERS OF THE HONOURABLE SOCIETY
OF THE INNER TKMPLE.
THE THIRD EDITION,
WITH THE ADDITION OT CRITICAL' NOIH AND OBSERVATIONS, AND
From Michaelmas Term, 7 Geo. III. 1766, to
(Sir John Eardley Wilmot having (on the 21st *76^ of August last) been appointed Lord Chief xtaiwAwo Justice of the Court of Common Pleas, in the Nor. room of Lord Camden, to whom the Great Seal was delivered upon the Earl of Northingtons resigning it; Mr. Serjeant Hewitt was yesterday appointed a Judge of this Court; and took his place upon the Bench, this morning.)
Rex tiers. Inhabitants of Castleion,
(This case is already reported at large, in theQuartoEdU tion of my Settlement-cases, No. 183. page 569; and abridged, in the Table to it.)
Rex vers. John Price, Esq. . N
/^AUSE was shewn why an information should not go ^ against the defendant, a Berkshire Justice of Peace RightofGleaa. residing at Wantage, for a misdemeanor in oppressively tag or leasing sending to gaol some poor inhabitants of the parish of "ltK\ be$*"' Childery, for Felony in gleaning a field of John Sim- propercircummans a farmer of that parish; (which they insisted they »tanrei and had a right, by law and by the custom and usage of that ratnetions. 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 f *W6 J
Vol. IV. H
1766. Justice, "that these people had stolen his barley in tfrtf
straw:" and he now swore "th.it he had forbidden
Rex V. "them; and yet they took it by hand I'm Is j and that he
Pkice. "hatl suffered the loss of about twenty bushels of barley,
"by their carrying it oft*, two days together."
Mr. Morton, who shewed cause on behalf of the Justice, denied the niGHT which these people claimed; and said that the Justice was obliged to proceed against them as he had done,' a felony having been sworn upon them, and they having no bail then ready*; for their bail refused to bail them till after the Justice should have first committed them. He did accordingly commit them; not to the County-Gaol, but to the House of Correction: and then he alone did bail them, taking only one single bail; and thereupon ordered them to be discharged; though he did not immediately sign a warrant of dis* charge. He denied all malice, and any design of oppression.
ait Fletcher Norton, contra, insisted On the right of the poor, to glean, after the corn is carried off the land: and he said that they would be justified, in an action of trespass, for entering such land in order to glean, under the common-law right of so doing.
The fact ceroid nor, he said, bca.fi/oin/: at the utmost, it could be b|it 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 power to bail them+. It is plain that he knew it was not a felony.
Lord iVf AJJsFiELD—Steamng, under the colour of leasing or gleaning, is not to be justified.
Now tfie 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: the malice seems to lie on the other side. The malice seems to be in the Attorney, who carries on the prosecution agaiust him.
Therefore the Rule ought to be discharged with costs.
Mr. Justice Yates said, he could not sec that the Justice had acted with any criminality or bad intention; but rather with lenity: and in such a case, the Magistrate ought to be protected, not punished.
As to the right of leasing—it will be time enough to determine that point, when it comes directly in question.
- The Justice
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 T. and lenity. The Rule ought to be discharged with Pbick. 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. J ustice H Ewitt—The right of leasing does appear £i 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 behaved with lenity and tenderness. It would be very wrong to punish a Justice of Peace by the extraordinary method or an information, when he has acted fairly, honestly, and impartially.
Therefore this Rule ought to be discharged with costs.
Rennet, Administrator, vers. Coker.
]yTR- Dunning moved, on behalf of the plaintiff, an -L"-*- Administrator, for Leave to discontinue, without payment of costs.
This was an action upon a bond, against an heir. On the plaintiff's not trying it according to notice, the defendant 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 4< that the estate had been conveyed;" and was "then satisfied "that there was a deed of conveyance, which would be produced at the trial." Whereupon he declined to go to trial;" and now desired to discontinue.
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 he 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 ■ays "Here is no double vexation."