The King against R Brooke and Others
| Jurisdiction | England & Wales |
| Judgment Date | 24 January 1788 |
| Date | 24 January 1788 |
| Court | Court of the King's Bench |
English Reports Citation: 100 E.R. 103
IN THE COURT OF KING'S BENCH
6 T. R. 631.
the king- against R. brooke and others. Thursday, Jan. 24th, 1788. A commitment by a justice of peace for a time certain, as for 14 days, under the Vagrant Act, is a commitment in execution (a), and the party is not entitled to be bailed. And if another magistrate, on illegal and corrupt motives, discharge a person so committed, the Court will grant an information against him. The Court, on granting an information, will not require the prosecutor to give security for the costs, in case the defendant should be acquitted, beyond the extent of the recognizance in 201. required by 4 & 5 W. & M. c. 18, s. 2. [6 T. K. 631.] A rule had been obtained last term, calling on the defendants, R. Brooke, J. Bobinaqn, and D. Williams, justices of the peace for the liberty of the Tower of London^ to shew cause why informations should not be filed against them for certain misdemeanors in discharging C. Bannister, W. Palmer, C. Delpini, and R. Gaudry, out of custody, who had been committed by J. Staples, a justice 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 persons who shall for hire, gain, or reward, act, represent, or perform, or cause to be acted, represented, or performed, any interlude, tragedy, comedy, opera, play, [191] farce, or other entertainment of the stage, or any part or parts therein, not being authorized by law, shall be deemed rogues and vagabonds within the true intent and meaning of the Act." The sixth section requires any justice of the peace, on receiving information that rogues and vagabonds are within his jurisdiction, to issue his warrant to apprehend them, and cause them to be taken before any justice of the peace of the same county, liberty, &c. By the seventh section, any justice, before whom any rogue and vagabond is brought, is required " to inform himself, by examination upon oath of the person apprehended, or of any other, of the condition and circumstances to apply to the public offices, is not material to be considered, because they went further, and the plaintiffs have adopted their acts. The next step they took (as it was now a forlorn hope) was to write to G. K. and Co. who were the ship-owners, living at Newcastle, thinking them the most likely persons to be able to get the insurance done; which they accordingly did on the 5th of October 1782. So far from being to blame in this, the defendants acted very meritoriously. When the loss was known, they endeavoured to get the policy out of the hands of G. K. and Co. and they applied repeatedly, but could not succeed; no diligence was wanting on their parts; but the answer was, that G. K. and Co. had other sums to recover upon the same policy, and therefore could not let it out of their hands. Fresh application was made in 1782, to which G. K. and Co. sent an answer, which is indeed an evasive one; but the defendants had no means of obliging them to give it up, but by bringing an action, and it can hardly be said that not doing so is negligence in them. If the defendants had made a blunder in the insurance which would have avoided the policy, that would have been negligence; but the policy is a good one; and it was only owing to the knavery and failure of G. K. and Co. that the plaintiffs have lost the benefit of it, for the underwriters have actually paid the loss to G. K. and Co. In the midst of these transactions, one of the plaintiffs came home; all the business was laid before him by the defendants ; he approved of their conduct; he took up the affair, and considered Anderson as his agent. Now if, with a knowledge of all the circumstances, he adopted the defendant's acts for a moment, he ought to be bound by them. If he had intended to insist on his right to recover the money from the defendants he should never have looked to others at all. But afterwards, when G. K. and Co. were likely to fail, then he considers the defendants as his debtors. Verdict for the defendants. (a) Vid. R. v. F. Khodes, post, 4 vol. 220, ace. 104 THE KING V. BROOKE 2 T. R. m of the person so apprehended, &c., the substance of which examination shall be put in writing, and be subscribed by the person so examined ; and the said...
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