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1827.

LE FLEMING

v. SIMPSON.

upon

which the defendant cut down three oak trees upon his own tenement, asserting that he had a right to have timber for the purpose of erecting a new barn; and if the steward would not order timber to be set out for this purpose, he would take it himself, as he had a right. It appeared also in evidence, that the defendant had carried away the oak trees, with the intention of using them in the erection of a new barn, which did not appear to have been completed. The plaintiff endeavoured to set up a custom in the manor, for the lord to enter upon the tenements of the customary freeholders, and to cut and take timber for his own use, at his will and pleasure. And she also adduced some evidence to shew, that according to the custom of the manor, the customary freeholder had no right to have timber set out for the purpose of erecting new buildings, but only for the repair of old buildings. In an early stage of the trial of the cause, the learned Judge threw out a hint, that the only question was, whether the lord had, by the custom of the manor, an absolute right to enter upon the tenements, and to cut down timber, and dispose of it for his own use; and he directed the jury, that such was the sole point for their consideration, and that the question whether the defendant had a right to timber for the purpose of repairing old buildings or erecting new buildings, was no part of the case for their consideration. Before the learned Judge had summed up, Courtney, on behalf of the plaintiff, elected to be nonsuited.

His Lordship, however, wished to have the finding of the jury upon the point; and they found, that by the custom of the manor, the lord had no right to enter upon the customary tenements, and cut and take timber for his own use. The plaintiff was to be considered as nonsuited, with liberty to move to set aside the nonsuit, and to enter a verdict for the amount of the value of the trees.

In Easter term, Scarlett, A. G., obtained a rule to shew cause why the nonsuit should not be set aside,

1827.

and a verdict entered for the plaintiff, or a new trial granted.

LE FLEMING

v.

SIMPSON. Blackburne, and T. Clarkson, now appeared to shew cause against the rule, which was supported by Scarlett, A.G., Courtney, and Aglionby; the learned Baron, however, reported, that he considered that he had misdirected the jury, and that it appeared to him, that it was proved at the trial, that the defendant had no right by custom, to timber for erecting new buildings, but only for repairing old buildings. Upon hearing the report read, the counsel for the defendant admitted, that they could not resist that part of the rule which related to a new trial; but they contended, that a verdict could not be entered for the plaintiff. The learned Baron being of opinion, very early in the course of the trial, that the only question was, whether the plaintiff had, by the custom of the manor, a right to enter upon the tenements, and cut timber for her own use, it became unnecessary and irrelevant for the defendant to go into the question, whether he had a right by custom to take timber for repairing old buildings, or erecting new ones; and therefore the counsel for the defendant, in his address to the jury, had confined himself solely to the other question, although he had a case for the consideration of the jury, upon the right of the defendant by custom, to have timber for the purpose to which the trees cut down by the defendant were intended to be applied.

Lord TENTERDEN, C. J.-If the counsel for the defendant states that he was instructed to prove the right of the tenant, we take that from him, and grant a new trial only The other Judges concurring.

Rule absolute for new trial.

ment of a con

assizes or

The King v. The Justices of SOMERSETSHIRE. The present- LUDLOW, Serjeant had obtained a rule calling on the stable for any defendants to shew cause why a presentment made by one offence, whe- Richard Hooper, constable of the Hundred of Whitley,

in the county of Somerset, of the Company of Proprietors quarter sessions, must be of the Bridgwater and Taunton Canal, for a nuisance,

and which had been removed into this Court by certiorari, oath, before the grand

should not be quashed, upon the ground that the conjury.

stable making the presentment did not go before the grand jury, and was not sworn or examined by them.

made upon

Rogers shewed cause, upon an affidavit stating the following facts. The usual practice with respect to presentments made by constables, which has prevailed for many years at the Somersetshire quarter sessions, and at the assizes on the Western and Norfolk Circuits, is for the constables of the several hundreds to be sworn in open court, generally, to present all nuisances, &c., within their respective hundreds. The constable who has any offence to present there, acquaints the clerk of the indictments with the nature of that offence, who thereupon draws up the form of a presentment, which the constable signs. The clerk of the indictments, afterwards, draws out another presentment, containing, in substance, the original presentment signed by the constable, to which he annexes the original presentment, and upon which he indorses a memorandum that the proceeding is upon the presentment of the constable who made it. The two presentments, thus annexed to each other, are then filed with the clerk of the peace, or the clerk of assize, without being laid before the grand jury, or returned by them, and without the constable who made the presentment, going before the grand jury, or being sworn, or examined by them. This mode was adopted in the present case, and the presentment last drawn was in the

v.

SHIRE.

common form of presentments by the grand jury, com- 1827. mencing with the words, “the jurors for our lord the

The KING King upon their oath present,” &c. Upon this affidavit

JUSTICES of the presentment in this case ought to be supported, for it SOMERSET-. is clear that it has been made according to the general and ordinary practice which has prevailed throughout the county for many years, which is harmless and unobjectionable in itself; and which the Court, therefore, will not disturb. [Lord Tenterden, C. J. This is, in effect, an indictment. How can there be an indictment without the intervention of a grand jury]? The practice is authorized by the common law, under which nuisances were presentable at the torne or leet; for Lord Coke says, “the law, for this common nuisance," that is, a nuisance in a common or public way, “hath provided an apt remedy, and that is, by presentment in the leet, or in the torne” (a); and Hawkins lays it down that constables may still present all offences inquirable of in the torne or leet (b). The torne and leet were originally courts of high criminal jurisdiction, exercising large powers and extensive authority; and though much of the business of these courts has been transferred to the assizes and the quarter sessions by the statute 1 Edward 4, c. 2, still a presentment like the present might, even at the present day, be made at the torne, and the case disposed of at the sessions. There are various instances in which justices of the peace are authorized to make presentments upon their own view or knowledge; and such presentments have all the force and validity of indictments found by grand juries. The statute 17 Edward 4, which was passed for regulating the making of tiles, appoints certain persons to act as searchers,' and empowers them to make presentment of defaults at the quarter sessions, déclaring that such presentments "shall be as effectual in the law as the presentment of twelve men;" and Lambard in his Eirenarcha, after alluding to (a) Co. Litt. 56, a.

(6) Hawk. lib. 2, s. 34.

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v.

SHIRE,

1827.

these powers of justices of peace and searchers, says, The KING

“and some such like strength, as I think, is the present

ment of constables, concerning sundry points contained JUSTICES of Somerset- in the statute of Winton ” (a). So, Fitzherbert, in his

treatise, Sur l'Office de Justice de Peace (b), observes, that it seems the presentment of a constable at sessions was formerly equivalent to an indictment. There is also an anonymous case in Ventris (c), which seems to support the position, that a constable making a presentment need not go before the grand jury, where the Court said, that constables were to present on their own knowledge, but were not obliged to present, unless the witnesses, upon whose testimony they are required to do so, have been carried before the grand jury (d).

Ludlow, Serjeant, contrà, was stopped by the Court.

Lord TENTERDEN, C. J.-This presentment is clearly bad, and must be quashed. There is no doubt that a constable may present upon his own knowledge; but still his presentment must be made upon oath. If he is able to present upon his own knowledge, he is equally able to go before the grand jury, and make his presentment upon oath. I am decidedly, of opinion that every such presentment ought to be made upon oath before the grand jury, and to be regularly returned by them, in order to its having any force or validity. Here is an indictment found not upon oath, a proceeding which we

(a) Lambard, lib. 4, c. 6, p. 508. And such presentment is as avail(6) p. 125.

able as one made by twelve men. (c) 1. Ventr. 336.

Dalton, J. P., 474, Fitz. J. P. 6. (d) Ritson, in his Office of Con- But he is not obliged to present stable, p. 62, says, “the constable a highway, sworn before him by should present all offences within two witnesses to be out of repair ; his own knowledge, which concern even though demanded so to do by the peace, as defaults of watching, the quarter sessions ;, an disorderly houses, affrays, &c., at tell them plainly that he will not the leet, tourn, or quarter sessions, presentit. 1 Vento. 336."...;

and may

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