1862, August 5, Sheffield Independent
Wilful Trespassing and Releasing Cattle
Elizabeth Roebuck, an aged woman, residing at Denaby, was summoned by Mr Whitaker, farmer, of Conisbrough, for committing a wilful trespass on his land on the 24th ult., And also for unlawfully releasing cattle from a pinfold on the 19th ult.
Mr Whitfield appeared for the defence, and Mr Whitaker conducted his own case, having fortified himself with a book on the law and a map of his land, which might easily be mistaken for the standard of a “rugged Regiment,” from its tattered appearance; buthe explain the cause of this by stating that it had been in his pocketall week, no doubt for the purpose of mastering its details as favourable occasions offered.
Notwithstanding all this amount of preparation, the gentlemen at times seemed somewhat shaky on certain law points; but it cannot be denied that he conducted “the prosecution” with the utmost vigour, and that is no little thing to say for a person of Mr Whitaker’s ardent temperament.
A servant of the prosecutor proved that on 24th old he saw the defendant with her cows on a piece of his Masters land, which was enclosed, but not entirely, as there was an opening from the road. The defendant was sitting on some steps inside the enclosure, and appeared to be tending the cows. He told her she had no right there, and she drove the cows away. He had seen her there many times previously….After the prosecutorquoted from his edition of the law on the subject, and stated that the herbage on both sides of the road belonged to him, so that the defendant would have been liable had her cows only been grazing in the road.
Mr Whitfield said the old adage had been verified – “a little learning is a dangerous thing.” The prosecutor had been reading and studying, and he thought he had mastered the law on this subject; but he could tell it, though it was a broad assertion, that the herbage on the highway was open to all the world.
Mr Bosvile differed with Mr Whitfield on that point; Mr Whitfield said he would not argue the matter, as it was not material to the present case. However he continued, the information was led under that section of the act of Parliament which related to wilful and malicious damage, and its stated that the defendant had committed damage and injury to and upon searching grass then and there in a certain clause of the prosecutors, by taking certain cattle into that pasture.
Now, he contended that it had not been grew that she had taken the cattle into the pasture at all. It also stated, “from being wilfully, unlawfully and maliciously “committing damage.” He submitted that it had been laid down in law that no person could be convicted under that very act of Parliament, unless the act they did was wanton and wilful, and done with the view, not of benefiting themselves solely, not with the view of some personal interest, but with a wicked and wanton desire to do injury, and unless this element be in the case, he thought if it would be tried by the judges of the land they would say the act did not apply.
The bench were wanted by the prosecutor to infer that because the woman was there she was there with a wicked and malicious intent; but the cattle might have strayed from the Turnpike road into the close, and even if the woman had delayed taking them out for a time, she was not guilty under that act of wilful and malicious damage.
Thirdly he would base his objections another ground, and contend that this section of the act of Parliament did not apply at all to the case. Whatever was done was not done directly by the person charged; under this section the thing done must be done directly by the person, and not indirectly. The section appeared to supply entirely and exclusively to wicked and malicious damage committed by the party complained against, and two had no reference whatever to damage indirectly caused by any act however unlawful in itself.
There was a case which would be found in able which was considered by some authority by gentlemen who acted in the capacity of magistrates – you meant the book entitled the “justice of the peace
Mr Boswell and: justices of the peace are at liberty to adopt his views, but are and are not tied.
Mr Whitfield: oh no Sir; you are not bound by any authority that I can place before you. The case to which he referred arose out of a very wanton, wicked and malicious act. There was a horse and cart steady ending in the street, and a person intentionally with something or other frightened the animal and it ran away. The result being the upsetting of the cart and the injury of the horse.
The same objection which he (Mr Whitfield) had raised, was raised in the case of the horse. It was argued in a Superior Court, and it was decided that the section did not apply, because the person had done nothing directly to frighten the horse. In conclusion, he said that upon one and all these grounds he confidently relied upon the charge being dismissed.
Mr Bosvile: your argument comes to this, that if a man goes in amongst standing corn and tramples it down he is not guilty, but if he drives cattle there he is guilty
Mr Whitfield: no sir; my argument does not come to that
Mr Boswell: well if it would hold good going into a cornfield, it would all good going into a grass field.
Mr Whitfield well in the one case, the wilfulness and wantonness would be more apparent. After short consultation, Mr Boswell said that they had come to the conclusion to convict in this case, but the penalty will be light one – 1s and costs, and 6d for the damage done.
The second charge was then proceeded with it will be remembered that the defendant was summoned by the prosecutor of the previous Monday, but from an informality in the information the case was dismissed. Mr Whitaker again deposed seen the defendant through a telescope, about half a mile of the Doncaster Road, sitting in one of his feels watching to cows and the calf which were grazing. This he went up to the field and brought both are and the cattle down to his farmyard, when replaced the cattle under a shared, and told her she should not have them without paying £1 will stop he left, and ordered his men to feed the cattle.
Prosecutor had acknowledged to have said on the previous Monday that he believed he had no authority to detain the cattle.
One of his servers deposed that during his master’s absence the woman came and took the cattle away. In cross-examination he admitted that he and others told the defendant that their master only wanted to “gammon her,” and said he did not offer to prevent her taking the cattle, because he thought that was the business someone else. He thought perhaps his master had given leave to take them away. The afterwards said he told her not to remove the cattle.
Mr Whitfield submitted that a transgression of the law of poundage imply something like a breach of the peace, or that some violence should be used, or some gross misrepresentation of facts. This year gone to the servants and said she had made arrangements with Mr Whitaker and then have taken them away that would have been a pound breach.
Mr Whitaker had said last Monday that he did not believe he was legally justified in what he was doing; and what did that intimate but that he did not wish to retain the cattle, if the defendant decided to take them away…
Mr Oxley: you have not raise a point where the cows come within the meaning of the act. This
Mr Whitfield then referred to the act… “If any person shall release, or attempt to release any horse, ass, sheep, swine, or other beast or cattle…” It had been decided that these words “other beast or cattle” which occurred the present statute fall within the judicial maxim propounded by Lord Tenterden, namely that wherein the statue general words follow particular one is the former are held as applying to the person and things.
While the magistrates were considering the question of the exception of cows, Mr Whitaker said: Mr Bosvile, there was a calf there will stop this
Mr Oxley: but unfortunate for you there was not an ass
Mr Whitfield, looking at the complainant: yes, I think there was (loud laughter)
This the bench decided to adjourn the case for a week, in order to consider the objection, and intimated their intention of convicting, if the objection was not a valid one
with respect to the former case, Mr Whitfield applied for a case for the Superior Courts, and one was granted.
It is only fair to state that in neither case did Mr Whitaker asked for a heavy penalty, but said he would be satisfied with a nominal one.