Lent Assizes.
N I I'aRUS CO URT-Before ,Ifr.Justire PARKC andaCommonJury. FRiEEMAN V. ARKELL. This was an action by the son of a farner in this county, for a malicious prosecution. Tlhe case came on for trial before Mr. Justice Park, at the last assizes. whcn the plaintiff was nonsuited on the formal Part oftthe case by thc direction of the learned .judgc, which nonsuit was afteiwards set aside by the Court of King's Bench ,and a new trial granted. Mr. GODSOX stated the substance of the declaration, to which the defendant pleaded the general issue. M1lr. CAsP13sELL opened the case, which he represented as one of very considerable aggravation. the Rev. Dr. Tinbrill said, that in ilMarch, 1823, Arkell came before him and made a deposition, which he delivered, at the quarter sessions to the Clerk of the Peace or his deputy. Mr. sloxsomc, the Clerk of the Peace, said, he had searched for the information in vain. Dr. Timbrill, having looked at his warrant, was asked the sub. stance of the clarge made by Arkell. He said, that he had reason to believe these questions were put to found an action against him- self; but at length answered that Arkell charged Freeman with hav- ing assaulted him, andtaken from him a precept whichihe was about to execute. Freeman was afterwards brought before him in the e. tody of Smith. the constable, and in company vith Arkell. The Doctor proceetled to say, " Freeman admittedl that he took the pre- cept away by force; but I cannot speak to the precise words." Being pressed. he said,"-I cannotswear that he used the words byforce.'" H1e acknowledged what was stated against himr; which was, that he took away the precept bp force. I let him know what the charge was, and he admitted it to be true. I am in possession of a field [next to Weston.hill. There has been a dispute about a footpath going across a field; but not whether it should go through mv field. I told Arkell, as surreyor, to see that the road was open through Weston-hill, as, otherwisec my parishioners could not go to church. ThiY was about Chri,tnmas; 1 did not then know that it Was disputed whether there was a footpath oyer Weston-iill. I made use of that path fifteen or twenty years ago, and since. I have not been that way during the last four years. I have used it three tmnes, sometimes four times a day, during the last fifteen years; my servants have used it in the last three years. After I gave directions to open Westos-hill, Freeman was brought to our petty sessions. I cannot say before whom-someth ig about stopping the road. I cannot swear whether any penalty was paid; the information was in writing; it was against the plaintiff's father. After this, I gave no directions to Arkell about the path, because there was a compromise. I recollect the father andson coming before me thesecond time, and a charge was then made against both; it was in writing, and uielivered to the clerk. On the 22d of llarch, I comimitted the plaintiff on his refusal to find sure- ties in the presence of Arkell ; lie was taken from my room in cus- tody. Previous to this, I hail granted a summons to bring Freeman before me to answer the charge. Cross-examined by Mr. TAxUxTOx.-I believe I never gave li- rections to open the road except at the petty sessions, when another magistrate concurred. The road had been obstructed only for a short time. When I desired the plaintiff to find bail, he repliad, he would not stir to do any such thing; I offered to accept his father; he said "1he would not give bail; I miiht hang him up if I pleased or send him to gaol." This was after the charge was explained, ant he had acknowledged that he did so. The signing of the warrant was my own act; Arkell neither directly nor indirectly interf'eredi in the matter, except that he wished him to find bail. The plaintiff was very obstinate; he seemed to me to be drunk. Arkell clid no more than make his deposition; the grantng the summons was my owvn act. Arkell was constable, and surveyor of highways to the hamlet. The complaint was to this efect:- That on his beginning to read the precept, the plaintiff, esclahning let nie look at it,' snatched it from him, and held it behind him; that he waited sonme time, and then rreeman put it onthetable; buton attempting to reeoverit, he was opposed by the plaintiff; who pushed awayhis arm, anil who thus succeeded in keeying it." O which the defendant told the plaiatiffrthat he should represent his conduct to the magistrates: to which Freeman replied, He might go to hell, or the devil, if he pleased." It was to this complaint that Freeman said " He had done so." Re-examinedby Af. CA3se'3LL.-I believe this was substan: tially in the written deposition but not the oath. I cannot repeat it all over again in words, but I know the substance. William Smith proved that he took the plaintiff on a summons to Dr. Tiinbrill, and afterwards on a warrant, to Northleacl gaol. His orisoner paid volun-arily for his eating and drinking on the road. Wiliain Newton, keeper of thte prison at Northleach, proved that the plaintiff wa s detained in his custody from the morning of the 24th to the 27th. Mr. Blhxsome produced tlte record of the indictment for an as- sault preferred at the sessions, and ignored by the grand jury. The warrant of commitnent by Dr. Timbrill was read. He de- scribed the charge as for violently assaultingArkell, and taking from him a precept which he was abouit to execute. Mr. Partridge, toreman of the grand jury proved that Arkell was the prosecutor of the indictment against F reeman; 31r. John Freeman, the father of the plaintiff', said-I hdvd lived tel mv life at Beckford, where I hold a farm. I was in possession of WMeston-hill two or three years after it was enclosed, as tenant to the Rev. M r. Stafford, vicarof OverburY. At his death I left it, and my son became tenant under MIr. Clarke, the present vicar. There is a ditch between Weston-hill and some land which is tlie property of Dr. Timbrill. There was a dispute about a right of way over tlc hill which Dr. Timbrill claimed. I always used to-plough down to the ditch. Some time in Mlarch I went befere Dr. Timbrill on this matter, and paid 40s. I was again brought before him with my son and refiused to pay the penalty. In the mean time we communicated with .3r. Clarke about the road. On Saturday, the 22d of Mllarch, my son and I met Thomas Arkell. sy son asked him to walk into Lthe house, and we all three went in. Arkell sat down 4 he said he had got two papers for us; my son asked leavc to look at them he pulled them out and said, "This is your's, and this is your fa- ther's," and ut them into my son's hand. Mv son asked, " Have you copies Of these papers ?" He said " No ;` and then my son said, " Father, bere's your pa er, I'll thank you to copy it." I ta.ned to the table and copied it. Arkell remained sitting in the roo>n. WVhen I had finished he said I had been along time at it; I said I was not in the habit of writing much, and could not do it so quick as others. ly son then put his paper to me and said," Father, 'll tbank you to copy mine." Askell said he should not wait. Aly son, wTo liad kept his paper the whole time in his hand, said he would hare a copy. I gave mine to Askell, who replied to my son, "You are a d-r fool, and want to bring me into as great a hobble as you are in yourself; and I'll be (d-d if I don't go to Dr. Tim- briU, aurd see wbat I can do for you." He took his hat, and walked out, lcaving the pa er in my hands. My son did not take the pre- cept by force, Ar elI voluntarily give it to him; while I copied mie, e and Arkell were amicably conversing. Mly son made no assault on him--never touched him. Miss Ann Frost was present the whole time. -My house is 500 or 600 yards from Dr. Timbrill's. My son was quite sober when he went to Dr. Timbrill's. Cross.examined.-1y attention was occupied by copying the pre- cept. Mly son held the paper in his hand; I think he once put the gaper behind him. Arkell asked for it, but it was not returned for nim. He we-nt away without making'any attempt to obtain it. No force could have been used withoout my perceiving it. liss Ann Frost, a milliner; who was present at the timc, corrobo- rated the evidenee of Mr. Freeman, sen., in everv psrtcular, except that, on cross.examination, she said thatAskell went isards Free- man and atte=pted to talce the paper, which wpn Fey ke_ p in tsil barl bv his side. e to nt touch Aslke3l; noT dia sile eret tell any one sO. This was the case for the plaintiff. M1r. TAU1NTON submitted that the plaintiff must be nonsuited. T'he declaration stated that the defendant caused Dr. Tia;brill to grant a warrant to bring the plaintiff before him, whereas it appear- ed to be a summons. The rtext allegation was, that because the plaintiff refused to find sureties, the defendant caused Dr. Timbrill to commit the plaintiff to prison ; whereas the evidence of Dr. Timbrill wass that the defendant wac a mere passive spectator, and that the issuing of the warrant seas his own act. The onlv remain- ing allegation wa the preferring the biUl at the sessions. Now it had been decided in " Bvme v. hloore," li Taunton, 187, that the mere refusal of a grand ju'ry to find the bill wfas not suf'icient ground for the action. AIr. RUSSELL, on the same side, subnmitted that no man was lia- ble for roalicieuslv preferring a bill, who was bound over to prefer it. Mlr. Justice Pl xi decided that all the obiections were unfounded; a summons in a criminal case was substantially a warrant; a party who made a chaTge pTocured a inagistrate to grant a warrant upon it; and the question whether a bill was preferred maliciously was for the jury to determine. Mr. TATIVTOY addressed the jurv for the defendant. Mir. Justice PAR, suninled iup th'e evidence, and directed the at- tention of the jury to the two propositions whlich the plaintiff was bound to establish,in order to entitle him to a verdict-the absence of probable cause,and ele existence of malice. The first point wac for the opinion of the judlge, but must be grounded on facts to be found by the jury; and in this case h was dearlyof opinion, if j they be1eved the plintiff's father and bliss Frost, that there was no 0 probable cause; but if they thouglht the recollection of Dr. Timnbrill accurte, then there was abundant cause for thedefendant's oroceed- ings. IVith respect to malice, he tiouglht no express maElce was proved, but still it might be implied, if they thought the charge was preferred with a conviction of its falsehood. If botb these points were mi.ee out to the satisfaction of thc jury, they would give the plaintiff a verdict for reasonable, moderate, and temperate damages; not viewitng the case in the inflamed colours in wvhich it had been pre- sented, but considerir.g it, as they xere bound to do, without paasion. The jury consulted fior a few minute, and then found -a verdict for the plaintiff--D)amages, 5t. LENV7 ASSLZES. GLOCESTER, TirESDAY, APRIL 6.