from his family, 424. The Soldier's Cafe, Trinity Term, 25. & 26. Geo. 2. A common foldier 1. Wilf. 331.-The defendant was brought up by an ha- billeted in a distant parish beas corpus, whereupon it was returned that he was com- from that in mitted by a justice of the peace as a vagrant, being charged which his faby the overfeers of the parish of St. Ann, Soho, as a rogue mily refides, is and vagabond, in running away from his wife and child, not a vagrant as whereby they are become chargeable to the parish. There running away was alfo an affidavit, wherein it was fworn on behalf of although he is the parith," that he was a watch-movement-maker, and able and refufe "could earn thirty fhillings a-week, and that he refufed to maintain "to maintain his wife and child."--MR. ATTORNEY them, and they GENERAL moved, that he might be difcharged, upon an able to the pa affidavit that he was a foldier, that he did not run away rim. from Soho, but was billeted at Whitechapel when he was taken up; and he contended, that common foldiers of the army, maintained and kept for the fupport of our liberties and properties, cannot be rogues and vagabonds, ot idle and diforderly perfons, within the meaning of the 17. Geo. 2. c. 5.-THE COURT. He cannot be a vagrant within this act of parliament, and fo must be discharged. become charge commitment in 425. Rex v. Brooke, Hilary Term, 28. Geo. 3. 2. Term A commitment Rep. 190.-A rule had been obtained laft Term calling under the vaon the defendants R. Brooke, J. Robinson, and D. Williams, grant act is a juftices of the peace for the Liberty of the Tower of Lon- execution. don, to fhew caufe why information fhould not be filed against them for certain mildemeanours in difcharging C. Bannister, W. Palmer, C. Delpini, and R. Gaudry, out of cuftody, who had been committed by J. Staples, a juf tice of the peace, as rogues and vagabonds, under the vagrant act 17. Geo. 2. c. 5. The second section of that statute enacts," That all common players of interludes, and "all perfons who fhall, for hire, gain, or reward, act, re"prefent, or perform, or cause to be acted, reprefented, or performed, any interlude, tragedy, comedy, opera, "play, farce, or other entertainment of the ftage, or any "part or parts therein, not being authorifed by law, "thall be deemed rogues and vagabonds within the true "intent and meaning of the act."-The fixth fection requires "Any juftice of the peace, on receiving infor"mation that rogues and vagabonds are within his ju"rifdiction, to iffue his warrant to apprehend them, and "cause them to be taken before any juftice of the peace "of the fame county, liberty, &c."-By the feventh fection, "Any juftice before whom any rogue and vagabond " is brought, is required to inform himself, by examina"tion upon oath, of the perfon apprehended, or of any "other,of the condition and circumftances of the perfon fo 66 appre REX.BROOKE. 66 apprehended, &c.; the fubftance of which examination "fhall be put in writing, and be fubfcribed by the perfon "fo examined; and the faid juftice fhall likewife fign "the fame, and tranfmit it to the next general or quarter "feffions of the peace to be holden for the fame county, "&c. there to be filed and kept on record; and fuch "juftice is hereby required to order all fuch perfons fo "apprehended to be publicly whipped, or to be fent to "the house of correction, there to remain until the next general or quarter feffions, or for any lefs time, as fuch justice fhall think proper," &c.-By the 26th fection it is enacted, "That any perfon aggrieved by an act of any juftice of the peace, out of feffions, in or concerning "the execution of this act, may appeal to the next ge"neral or quarter feffions of the county, &c. giving rea"fonable notice thereof, whofe order thereupon fhall be "final." The affidavits filed in fupport of the prosecution stated, that Staples, who was a juftice of peace refiding within the Liberty of the Tower, had iffued his warrant on the 17th July, returnable before himself, for apprehending Bannifier as a rogue and vagabond under the fecond fection of the act before recited, and, upon due examination, had committed him to the house of correction for fourteen days: that the defendants Brooke and' Robinfon had, on the fame day, iffued their warrant. for difcharging him out of cuftody, upon his giving bail to appear at the next quarter feffions, and to profecute his appeal against the conviction. The affidavits also stated, that Staples had granted a fimilar warrant to' apprehend William Palmer, on a fimilar information laid before him; that upon the officer's arresting him, he produced a fuper fedeas out of his pocket, which the officer would not allow as fufficient to discharge the warrant, but infifted upon taking him before Staples, by whom it had been iffued that was oppofed by John Robinson, a brother of one of the defendants, who took the prisoner, against the confent of the officer, to the court-houfe, whither the defendants Brooke and Robinfon had given orders to the feveral officers to bring all perfons who should' be apprehended by any warrant of Staples, and where they were then fitting; who, upon the officer's refufing to fet Palmer at liberty unlefs the warrant wás difcharged, without hearing the information on which the warrant had been granted, or examining any evidence, wrote "difcharged" upon the warrant. On the 19th July, Palmer was again apprehended on another warrant of Staples, who regularly convicted him as a rogue and vagabond, and committed him to the house of correction for four teen teen days; and he also wrote underneath the commit- REX.BROOKE iment: "Take notice, that William Palmer cannot be dif charged before the expiration of the above term, unless "fuch difcharge be figned by two juftices, one of whom "must be the committing magiftrate." The prifoner was, however, difcharged about an hour after his commitment by the defendants Brooke and Williams, on his appealing, and giving bail to profecute it. There were other warrants iffued by Staples against other perfons, and 'difcharged by the defendants under fimilar circumstances. The defendants, in anfwer to thefe charges, ftated in their affidavits, that they had acted as juftices of peace for fome years paft, and that their ufual place of doing bufinefs was at the court-houfe, where there was a regular attendance for that purpose: that John Palmer had obtained a licence at the quarter-feffions under the 25. Geo. 2. c. . for musical entertainments, and had retained as perfor mers the perfons who had been convicted by Staples: that they having appealed against the convictions, and Staples having refufed to bail them, they the defendants, at the inftance of the perfons committed, and by the advice of Mr. Rutfon, the clerk of the peace, had taken fufficient bail for their appearance at the next quarter-feffions to profecute their appeal, conceiving that the act having given the party committed a power of appeal, the fentence fhould be fufpended in the mean time: that afterwards, at the feffions, the appeals were allowed, and the convictions unanimously quashed: that as to the fuperfedeas granted by them, it was agreeable to the common practice; and they denied generally any interefted motives in what they had done. It appeared in aufwer to a queftion put by the Court in the courfe of the argument, that the convictions had not been quafhed on the merits. -PIGOTT, MORGAN, SYLVESTER, and TAYLOR, thewed caufe, and contended, that the information ought not to go, unless it appeared that the defendants had acted both corruptly and illegally: but it was first neceffary to make out that they had acted illegally; as to which, although no exprefs power is given by the ftatute to bail the party under the feventh fection, yet as he is permitted to appeal to the next feffions, it follows of courfe that he may be bailed in the mean time, otherwife the appeal is nugatory; for the party may fuffer the punishment before his appeal can be heard. Now the defendants did not altogether difcharge the prifoners committed, they only changed their cuftody; for when they were bailed, they were ftill in the cuftody of the law. If the defendants had taken infufficient bail, with a view to favour REX.BROOKE. the escape of those perfons from juftice, that might have been a ground for an information; but it appears that they did take responsible bail, and that the prifoners actually did appear to profecute their appeal at the feffions, whofe final adjudication against the propriety of the convictions fully juftifies the conduct of the defendants, fince it muft now be taken that the convictions were groundless; and unless the perfons committed had been admitted to bail, they would have fuffered unjustly and illegally. But even if the Court should be of opinion that the conftruction of this act of parliament by the defendants wast wrong, and that, ftrictly speaking, their conduct in this particular was not legal; yet inafmuch as it was a doubtful queftion upon this act, Whether the commitment by a magiftrate of a rogue and vagabond was a commitment in execution, or only for fafe cuftody? which had never (a) Sed vide received any judicial determination in a court of law(a); Rex v. Aldred. the Court ought not to interpofe in this extraordinary manner by granting an information against these magiftrates, especially too as they deny having acted from any interested motive with refpect to the other part of the charge, for granting a fuperfedeas to the warrant: although perhaps it may not be strictly justifiable, yet it has obtained very much in practice of late, and has been found highly beneficial in many inftances; and if the defendants were warranted in bailing the perfons committed, on their undertaking to profecute their appeals at the feffions, they were equally juftified in granting the fuperfedeas to the other warrant, for the fame reafon, becaufe the parties had appealed, there being no other charge against them. -BEARCROFT, in fupport of the rule. There can be. no doubt but that the defendants have acted illegally; the law is clear, that where a man is committed in execution, he is not bailable. Now the commitment by Staples under this act was clearly in execution; and with refpect to an appeal being given by the ftatute, the judgment of the juftice convicting is not lefs binding on that account; it is like a writ of error brought to reverfe a judgment in a court of law. And though an appeal is given in this cafe, the ordinary courfe of punishment adjudged by conviction is to take place in the fame manner as in the cafe of a judgment in a court of law upon a criminal proceeding, where the punishment may be inflicted before the writ of error can be determined. The defendants alfo acted illegally in granting the fuper fedeas to the warrant; for though it may be allowable to grant a fuperfedeas in certain cafes, yet that is where the offence is clearly bailable. The fuper fedeas granted in this cafe was highly criminal, by which the defendants Brooke and Ro- REX.BROOKE binfon took upon themselves, without even hearing the information, or examining any witneffes, to difcharge a warrant which had iffued for apprehending Palmer, and thereby ftifled juftice in the outlet. There can be no pretence for infifting that the defendants did not know this to be illegal; and indeed it was fo notorioufly wrong, that their conduct can only be afcribed to improper motives. This circumstance alone is fufficient to fhew the real motives which actuated the conduct of thefe defendants throughout the whole bufinefs; from whence it appears, that they intended to protect all those persons who were acting in defiance of law.-ERSKINE, FIELDING, CONST, and GARROW, on the fame fide, were stopped by the Court.-ASHHURST, Juftice. If this matter had refted merely on the charge of the defendants having admitted the parties to bail after they had appealed against the convictions, I fhould have been very unwilling to have granted an information against them on that ground; becaufe, as the act of parliament gives a fummary jurifdiction to a magiftrate to convict perfons coming within the description of vagrants, and in the fame breath gives the party convicted a right of appeal from fuch conviction, a magiftrate not very converfant in the law might natu rally enough have conceived that the meaning of the legiflature was, that the party fhould not undergo the punishment till the appeal was determined; and therefore, if the juftices had acted bona fide, I fhould not have been inclined on this ground alone to have granted the information. But the principal ground is, that they have taken upon themselves to fuperfede a warrant of a juftice of the peace, having competent jurifdiction, before the matter had been enquired into at all, and without having any evidence before them: this was taking upon them to prejudge that the juftice granting the warrant must have done wrong, and that the party on appeal would be acquitted; this was certainly a palpable and grofs abuse of their office. But there are other circumstances befides to fhew that this could not have been done in the ordinary courfe of juftice, but that the defendants have made themselves parties in the bufinefs, and have affociated themselves with the perfons who had been convicted by the magiftrate; for two of the defendants, Robinfon and Brooke, ordered the conftable to execute his warrant at the court-house, and would not fuffer him to carry his prifoner to the magiftrate before whom the information had been laid; and they took upon themselves to discharge the prifoner without even hearing what had been alledged against him. Now admitting that a prac Z 2 tice |