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Michaelmas Term, 30 Geo. II, 1756, to Easter Term,

12 Geo. III. 1772.

IN FIVE VOLUMES.

BY SIR JAMES BURROW, KNIGHT,

LATE MASTER OF THE CROWN-OFFICE, AND ONE OF
THE BENCHERS OF THE HONOURABLE SOCIETY

OF THE INNER TEMPLE.

THE THIRD EDITION,

WITH THE ADDITION OF CRITICAL 'NOTES

AND OBSERVATIONS, AND
REFERENCES TO OTHER REPORTS AND AUTHORITIES.

VOL. IV.
From Michaelmas Term, 'Geo. III. 1766, to

Hilary Term, 10 Geo. III. 1770, inclusive.

LONDON:
PRINTED FOR W. CLARKE AND SONS, AND J. BUTTERWORTE.

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[ 1925 )

MICHAELMAS TERM

7 GEO. 3. B. R. 1766.

1766

Thursday 6

Nov.

(Sir John EARDLEY Wilmot having (on the 21st

of August last) been appointed Lord Chief Justice of the Court of Common Pleas, in the 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 ders. 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.)

Rex ders. John Price, Esq.

Friday 7 Noy

1766. CAUSE 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.

proper circum. mons 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

VOL. IV.

B

Rex v.

1

1766. Justice, “ that these people had stolen his barley in thre straw:

and he now stvore " that he had forbidden “ them; and yet they took it by handfuls; and that he Price. " had suffered the loss of about i wenty bushels of barley,

" 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 having been sworn upon them, The Justice and they having no bail then ready* ! for their bail complaint, 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 : :

and then he alone did bail them, taking only one single Winterbourne insisted that bail; and thereupon ordered them to be discharged ; they should be though he did not immediately sign a warrant of disa tirst committed; and then he

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 seven of them, 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 men. They

trespass, for entering such land in order to glean, under
were encourage the common-law right of so doing.
ed by a neigh-
bonring At- The fact could not, he said, be a felony : at the utmost,
torncy. it could be byt 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 them t. It is plain that he knew it was not
Pl. & Mary, a felony.
C. 13. || 3. Lord MANSFIELD-STEALING, under the colour of leas-

ing 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 contined 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. 11 H.BI. 65.] As to the right of leasing—it will be time enough to

determine that point, when it comes directly in question.

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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 behaved 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-
Rule discharged with Costs.

Saturday, 8

Nov. Bennet, Administrator, vers. Coker.

(See Sayer's law

of Costs,96.97.) MR. Dunning moved, on behalf

of the plaintiff an Administrator payment 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- [ 1928 ] 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 Darn. 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 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 ways “ Here is no double vexation."

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