The Sun.
London, England, 1864-04-01 00:00:00

ASSIZE INTELLIGENCE.

NORFOLK CIRCUIT.—NORWICH, March 31.
(Before the Lord Justice and a Special Jury.)
FULLER Y. SUTTON AND OTHERS-THE MUNDORD POACH-

ING CASE.

Mr. O'Malley, Q.C., and Mr. Phear appeared for the
plaintiff; Mr. Keane, Q.C., Mr. Bulwer, and Mr. Markby,
for the defendants.
This case was an action against three of the magistrates
of Norfolk.
Philip Fuller, the plaintiff, was cross examined by Mr.
Keane, Q.C.—I was not asked where I bought the game,
and I did not say. I did not call the persons I bought it of
as witnesses. Mr. Walpole's uncle was present when I was
before the magistrates on the Ist of July. He did not apply
for a postponement—they let me go without entering into
recognisances. When I was before the magistrates in
August Mr. Baring said he wished it put off then, as he
had applied for counsel's opinion to know what he should
do in the case. On the last occasion that I was before the
magistrates Mr. Baring said they had tried to get the
penalty let down, but they found they could not do it.
They gave me a month to pay the fine, and said I must pay
the costs down. I said I had not got the money, but I did
not ask for time.
By the Judge—l don't recollect whether I told my at-
torney where I bought the game.
The reports of the proceedings before the magistrates in
the Bury Post were put in and read.
Mrs. Bye—My husband is Shepherd to Mr. Roper. I
was subEcenoad, and have since had notice to leave my house
within a week.
Mr. Keane submitted that that was an improper ques-
tion.

His Lordship—l cannot believe, Mr. Phear, that a gentle-
man of your experience does not know that that is an im-
proper question, and could only be asked for the purpose of
prejudice.
Mr. O'Malley, Q.C.—lt has been made a point in this
case that the plaintiff did net call these witnesses when be-
fore the magistrates, and this evidence is introduced to
show why he did not. After his lordship's remarks I feel
bound to say that I am entirely responsible for the ques-
tion asked by my learned friend, and for the reason I have
stated. The witness went on to say that she sold the pri-
soner the rabbits.
Mrs. Mathew—My husband is bailiff to Mr. Roper. I
remember the plaintiff coming to my house just before he
was taken before the magistrates. I had a hare and par-
tridge in my house that day. I parted with them to Fuller.
He gave me some herrings, some yeast, and a shilling. I
gave him the partridge.
This was the plaintiff's case.
Mr. Keane submitted that there was no case to go to the
jury, as the conviction was not quashed.
Mr. O'Malley called his lordship's attention to the Jus-
tice of the Peace Act, and submitted that it was only neces-
sary that the conviction should be quashed in cases not
within the jurisdiction of the magistrates.
His lordship stated that he would consult Mr. Justice
Crompton, and give his decision this morning.
This mornine the learned Chief Justice stated that he did
not feel justified in stopping the case, but he would reserve
the point.
Mr Keane then submitted that no action would lie in re-
spect of the refusal of the magistrates to state a case.
Mr O'Malley said that he did not rely on that as a sub-
stantive cause of action, but it was evidence of malice.
His Lordship—The great question will be whether there
is malice.

Mr Keane not calling witnesses,
tending that
ni atd it
Mr O'Malley addressed the jury for the plaintiff, eon.
malice,th econvictiona th e
matli as
Crates a hee facts c
ones
clearly
of thed
show
groundsshowed
of
the plaintiff had been convicted before.
Mr Keane then addressed the jury for the defendants
He (the learned counsel) thought he could satisfy the jury
that the decision of the magistrates, if wrong, only resulted
from the erroneous judgment of the magistrates, and not
from any desire on their part that justice should be admi-
nistered partially. He did not presume to criticise what
was done in the Court of Queen's Bench, but what was done
there was calculated to einbarass the magistrates. Under
an act confessedly obscure, and of which it has been held
that the mere finding of game was presumptive evidence of
guilt, there could not, under the facts of this case, be ma-
lice. What other conclusion could the magistrates come to
than that the plaintiff came by the game improperly ? Could
the ju, y then say that they had personal or legal malice?
The plaintiff gave no account of the game. Game is found
in the cart—a partridge with its legs broken, as if by a trap
or snare ; a hare, which the plaintiff did not mention to the
policeman; the cart against a plantation; and all the de-
fence was that the man had a wooden leg. It reminded him
(the learned counsel) of a story told in one of Mr Dickens's
novels. A coachman was told that the law required him to
do something which it was impossiblo for the driver of a
coach to do, and the reply he made, not very respectful
perhaps, was that if the law required this " the law was a
bass, and never drove a coach;" and he (the learned coun-
sel) said that if the law was such that a man with a wooden
leg could not be convicted of poaching, "the law was a bass,
and had never poached." (Laughter.) Then they say it was
malicious, refusing to state a case; but what did the ma-
gistrates do? They say that is not the proper course, you
should appeal, and then you would have both facts and law
gone into. The plaintiff might have taken up a case after
that. The delay after the case was decided was only caused
by the magistrates taking the opinion of counsel, as to
whether they could let the plaintiff off altogether. Some-
thing had been said about Mr. Sutton saying that he would
not stultify himself by altering the decision the magistrates
had come to. It had been said, why did not the magistrates
come and face the jury 2—why rest their case on the facts as
stated by the plaintiff himself ?—and they say that on those
facts no malice is shown. They could not alter the facts if
they had come and given evidence.
His Lordship then summed up to the jury. He com-
menced by stating that it was for him to decide whether
there was reasunable and probable cause for the conviction,
and in his opinion there was not ; but that would not ren-
der the defendants liable; unless the jury were of opinion
that there was malice. Under this act of Parliament it was
not necessary that the man should be seen upon land. That
conclusion might be come to inferentially, but in his opinion
the evidence did not justify that inference. If this man had
been found at 5 o'clock in the morning or with guns and nets,
or even in company with a person who was proved to be in
pursuit of game, the case would have been different ; but
the inference was, what the evidence to-day has abundantly
proved, viz., that he was going about the country collecting
game which other pt ogle bad taken ; and that would not
justify the conviction. But it, is not because magistrates
make an error in judgment that they are to be responsible
Then came the question, was there malice He (the learned
judge) would have seen nothing in the ease to indicate malice
had it not been to the unfortunate expression of Mr. Baring,
to the effect that they allowed themselves to be influenced
by the antecedents of this man. The question then was,
were they so influenced ? It appeared Mr. Baring used these
expressions to justify the opinion of the magistrates, which
had been rather roughly handled by the Court of Queen's
Batch ; and if that was the case, and they were only influ-
enced by the evidence which was before them, they were
not liable. But if the magistrates strained the law in order
to convict this man, that would be malice. The question
for the jury was, whether what was done was maliciously
done; if not, their verdict must be for the defendants
With respect to the refusal of the case, that was matter for
their consideration on the question of malice. They had a
discretionary power, but they were bound to exercise that
without malice. It was said they had omitted facts in the
case, but if the jury were of opinion that the only question
on which the magistrates wished for the opinion of the court
was as to whether it was necessary to prove that he had been
seen on land, then in his (the learned judge's opinion) no
material facts had been omitted. If the plaintiff wanted to
reverse the decision on the facts, the Court of Quarter
Sessions was undoubtedly the proper tribunal to go to. As
to the count for the imprisonment, he was of opinion that it
was justified by the subsisting conviction. The jury would
therefore say whether there was malice, and whether an
unreasonable time elapsed between the decision of the Court
of Queen's Bench and the imprisonment of the plaintiff.
The Jury, after considering for nearly two hours, returned
a verdict for the plaintiff—damages 40s.—and stated, in
reply to a question from his lordship, that there was only
malice in straining the law at the time of conviction, and
that no unreasonable delay occurred in carrying out the
conviction.
His lordship certified for a special jury, and that it was
a proper case to be tried.
PRATT V. CANNELL.
Mr. O'Malley, Q.C., Mr. Keane, Q.C., and Mr. Cherry
appeared for the plaintiff; Mr. Bulwer and Mr. Stephen
son for the defendant.
This case involved a question as to the title to a fence,
and was of no interest whatever except to the parties con-
cerned.
A verdict for the plaintiff—damages' Is.—was entered
by consent.
NEWHAM V. MASTERS AND OTHERS.
In this case, which was an action for injuries sustained
by the plaintiff from some machinery of the defendants,
who are merchants and millers at King's Lynn, a verdict
was entered for the plaintiff for £l5O by consent,
Mr. Keane, Q C.. and Mr. D. Brown appeared for the
plaintiff; Mr. O'Malley, Q.C., and Mr. Markby for the
defendants.

CROWS COURT.
(Before Mr. Justice Crompton.)
Collbeck, Alexander, McDowell, and Rock, the four
soldiers who v.ere tried yesterday for riot and violent
assaults, were found guilty and sentenced to three years'
penal servitude.
Mr. Metcalf and Mr. Sims Reeve appeared for the pro.
secution, the prisoners were not defended by counsel.
Edward Hyde was indicted for feloniously wounding
Thomas Smith.
Mr. Carlos Cooper was for the prosecution, and Mr. Drake
for the defence.

The prosecutor was a veterinary surgeon, and the prisoner
a brewer, both of them living at Watton. On the evening
of the 24th of December last they were both drinking at
the Green Man, at Watton, and a good deal of quarrelling
seems to have occurred amongst the petty. The prosecutor
was turned out of doors by the landlord, and for half an
tour afterwards occupied himself with knocking and kick-