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Alegal case for Richard Burley
In 1814, Richard sued the magistrate for having maliciously and without any reasonable cause, falsely and maliciously convicted him of being a rogue and vagabond. The case was tried at the Surrey Lent Assizes before Thomson C. B.
Richard was unsuccessful with his case, the final judgement being Rule Discharged. Interestingly, the suggestion of some of those trying the case at the assizes was that an action against the Parish Officers for false and malicious prosecution would have stood more chance of success that an action against the magistrate for false and malicious conviction.
This was succinctly summed up by J. Heath who said, "There might be a malicious prosecution by the parish officers without a malicious conviction by the magistrate. There might be an unfounded conviction by the magistrate without malice."
One final point I noted was that Richard was in service at Seal, Kent at same stage between the time of the alleged offence and the original prosecution. Seal (near Sevenoaks) is where Sarah Brackpool, Richard's great niece and Roland Green's 2 x great grandmother, was born. (Roland is the auther of the Sayer branch) For a full report, go to http://books.google.com/books?id=Hl9HAAAAYAAJ&pg=RA4-PA580&dq=burley+lingfield&hl=en&ei=CExyTtAOg8TxA4zLiJwK&sa=X&oi=book_result&ct=result&resnum=3&ved=0CDgQ6AEwAg#v=onepage&q=burley%20lingfield&f=false
Burley v Bethune, Clerk, LL.D.
This was an action brought, as required by the Stat. 43 G.3.c.141., upon the case, against a magistrate, for having, in May 1813, maliciously and without any reasonable cause, falsely and maliciously convicted the Plaintiff of being a rogue and vagabond, for that he the plaintiff did run away, and leave his wife and family, whereby they became chargeable to the parish of Lingfield, and for having, under colour of that conviction, by his warrant, caused the plaintiff to be imprisoned, until the conviction was removed by certiorari, and quashed by the Court of King's Bench, and the plaintiff brought up by habeas corpus and discharged.
The cause was tried at the Surry Lent Assizes 1814 before Thomson C.B. The plaintiff proved that he had given the due previous notice to the Defendant of an action for having maliciously and without any reasonable or probable cause caused Richard Burley of Lingfield to be unlawfully convicted and imprisoned, &c.; the plaintiff also proved that he was married and had a daughter, whom he had always until, and at the time of his conviction maintained in his house; and had maintained his wife; until he detected her in an adulterous connection; and on his upbraiding her with it, in February 1812, she eloped with the adulterer, and slept with him at an inn, since which time the plaintiff had never received her, nor contributed to her maintenance.
That the plaintiff was apprehended, and after being kept seven days in custody, was brought up on an charge of deserting his family, before the defendant and another magistrate who refused to join in the conviction, for the reason, as the witness believed, that he had been present at a meeting of magistrates at Godstone. The plaintiff was precluded by the Chief Baron from proving what had passed at that meeting, where the plaintiff had in fact been summoned by the parish officers, who had relieved his wife, upon a similar charge made before three magistrates, which, on hearing the facts, they dismissed; but the plaintiff further proved that the defendant convicted him, and that he underwent seven weeks imprisonment, under a warrant issued by the defendant and that the conviction, which did not set the evidence of his offence, was quashed by the Court of King's Bench, (in truth, upon that ground).
Here the plaintiff left his case; and, for the defendant, it was objected, that the plaintiff had not proved the want of reasonable or probable cause for the conviction, which it was, under the act 43 G. 3. C. 141. Incumbent on him to do.
For the plaintiff, Best Serju. Distinguished this from the case of an action for a malicious prosecution after a bill found by the grand inquest, which is prima facie evidence of reasonable or probable cause against him, it was incumbent on the defendant to shew the existence of reasonable and probably cause. For the defendant, it was also objected that the plaintiff must be nonsuited, because 1. The notice of action was for causing the plaintiff to be convicted, whereas the action was for convicting: 2, that the notice described the plaintiff as of Lingfield, whereas the proof was that he lived in service at Seal in Kent, Thomson C. B. thought that the statute 43 G. 3. meant to put actions against justices for acts done in the execution of their office on the same ground as actions for malicious prosecutions, and that it was incumbent on the plaintiff to give proof of the want of probable cause, according to the decision in Purcell v Macnamara, 9 East, 361., and no evidence was here given by the plaintiff of what passed before the magistrate at the time of making the conviction, and he nonsuited the plaintiff principally on this ground, though he attached some weight to the first objection on the notice.
Best in this term had obtained a rule nisi for setting aside the nonsuit, and granting a new trial, insisting that in this case the plaintiff had proved enough, and all that a person charged with an offence before a magistrate ordinarily had it in his power to prove; for he usually has no witnesses with him, nor any professional assistance.
The magistrate, on the other hand, had the depositions of the witnesses for the prosecution reduced to writing, which he might, without difficulty, have produced to exculpate himself, by shewing that, notwithstanding the plaintiff's innocence afterwards proved, there were appearances existing at the time of the conviction, which made a probable cause. With respect to the objections taken to the notice, the statute required only that the residence of the plaintiff’s attorney should be truly stated, which was complied with, and the erroneous description of the residence of the plaintiff himself was immaterial. The convicting was comprehended within the allegation of causing to be convicted; and, at all events, the notice, as well as the action, embraced the causing to be convicted, and that grievance was proved. Vaughan Serjt. who on this day would have shown cause against the rule, was stopped by the Court.
Best and Onslow Serjts. in support of the rule, urged that the plaintiff had not the means of proving the depositions, for they were not in his custody; that one part of the conviction, viz. that of the plaintiff's leaving his family, was entirely without a pretence, for the complaint against him was only of leaving his wife. If it is incumbent on a person falsely convicted, to prove in his case all that passed in evidence before the magistrate, the subject is placed by this act in a desperate situation. In Purcell v Macnamara, a bill was found by the grand jury, which was prima facie evidence of probable cause, to be rebutted; in this case no act of any third person encourages the slightest presumption of probable cause, and the plaintiff’s former acquittal by the magistrates of the county is a very material circumstance.
GIBBS C. J. This is an action against a magistrate for having convicted the plaintiff maliciously and without any reasonable or probable cause, and by the act 43 G. 3. C. 141. The plaintiff is not to recover more than 2d. unless he states in his declaration, which must be in an action on the case, that the act complained of was done maliciously, and without any reasonable or probable cause. And the question is, whether in this case the plaintiff has proved that the defendant convicted him maliciously and without reasonable or probable cause; The principle is admitted, but the question is, what is that matter, whereof it must appear by the evidence in the action, that there was no reasonable or probable cause? There is a wide distinction between an action against the prosecutor for a malicious prosecution, and an action against a magistrate for a malicious conviction. In the former case, proof that there was in reality no ground for imputing the crime to the plaintiff, shews that the prosecution was instituted without probable cause, and malice may be inferred from thence. What passed at the trials is, in this case, immaterial. The prosecutor may have sworn to the truth of the charge, but that will not shew that he had a probable cause for it. In an action against the magistrate for a malicious conviction, the question is not whether there was any actual ground for imputing the crimed to the plaintiff, but whether, upon the hearing, there appeared to be none. The plaintiff must prove a want of probable cause for the conviction, which he can only do, by proving what passed upon the hearing before the magistrate, when the conviction took place. The magistrate has nothing to do with the guilt or innocence of the offender, except as they appear from the evidence laid before him. The conviction must be founded upon that evidence alone, and it is impossible to show that that there was no probable cause for the conviction, without shewing what that evidence was.
Heath J. I am of the same opinion. There might be a malicious prosecution by the parish officers without a malicious conviction by the magistrate. There might be an unfounded conviction by the magistrate without malice.
Chambre J. concurred.
Dallas J. Why did not the plaintiff produce the witness who was sworn before the magistrate? He could have sworn to what passed upon the hearing of the charge, and then it would have appeared whether there was any reasonable to probable cause for the conviction.
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